Judicial Leadership

Panel:

Hon Baroness Brenda Hale (former President of the Supreme Court of United Kingdom)

Hon Irene Mambilima, Chief Justice of Zambia

Hon Helen Winkelmann, Chief Justice of New Zealand

Hon Mandisa Maya, President of the Supreme Court of South Africa

Hon Anna Blackburne-Rigsby

 

Kua hinga he totara i te wao nui a Tane – a totara has fallen in the forest of Tane

I wish to begin this report to acknowledge the passing of the Hon Irene Mambilima, Chief Justice of Zambia, who sadly passed away not long after the biennial conference. I include above a whakatauki used in Aotearoa/New Zealand to acknowledge the passing of someone with great mana (prestige). It was a great honour to hear Mambilima CJ speak at the conference and that we had the opportunity to hear about her amazing career. She was an inspiration to all and her presence within the legal community will be immense. It was evident during the panel about her commitment to access to justice, particularly for women.

Previously, Mambilima CJ was the Director of Legal Aid and in that role touched the lives of many women who, she notes, often fail to get access to justice. She noted in Zambia women are far more likely to be living in poverty and also face institutional barriers, such as access to education. Therefore, when they come before the courts they are already at a disadvantage especially if they cannot afford representation. She said women are at the bottom of ladder of literacy and education and especially now with Covid 19 in Zambia. Women cannot access those digital platforms especially rural areas. Mambilima CJ’s goal was to develop side by side systems (in person and digital) to ensure women were not missing out. We are all hoping that her drive and courage to promote access to justice for women continues and come to fruition as part of her legacy.

A conversation with wāhina toa

Delegates were privileged to hear from these judicial leaders in a conversational setting, moderated by Judge Mary O’Dwyer of the District Court of New Zealand and President of the New Zealand Association of Women Judges/Te Kāhui Kaiwhakawā Wāhine o Aotearoa.

Journeys to the bench

Panellists talked about their journeys to the Bench: Baroness Hale reflected that her appointment was an unusual one, coming in as an academic. Winkelmann Chief Justice shared her experience of becoming a partner at the very tender age of 25, acknowledging some of the challenges of being a woman in law have been paved by judges such as Dame Silvia Cartwright and Dame Augusta Wallace. Judge Anna Blackburne-Rigsby shared the values her parents had taught her: the value and importance of education and service and how their activism for black civil rights shaped her journey to the law. Justice Mandisa Maya also credited the lessons of her parents to value education, to work hard and to demonstrate integrity.

Championing diversity

Given the theme of the conference is celebrating diversity, panellists were asked to discuss what challenges are still in the way of ensuring diversity within the courts and particular challenges, especially for women.

All panellists reflected that the judiciary should reflect the society it represents. They also shared how their own personal experiences have shaped the way they view diversity. For example, Winkelmann Chief Justice spoke of how living on welfare as a child reminds her what it is like to be powerless and live on the fringes and how that has determined her objectives as a leader. For her, diversity is greater than gender but also about work experience diversity, ethnicity and disability.

Justice Maya made the point that in South Africa, a majority of citizens and not just women were excluded for years. It is therefore important to encourage and create opportunities for others, to mentor and assist.

Judge Blackburne-Rigsby noted diversity becomes important in collegial panels where there is collective judging. If you want courts to be valued, then diversity is essential. Judges have a role to play in encouraging people to put their hands up and think they can do it.

Baroness Hale talked about how her championing of women, with a genuine open merit based system and encourage all women has been called “Brenda’s agenda” (to the laughter of the audience). She said she will continue to talk about Brenda’s agenda as long as people are willing to listen.

Diversity of opinion: working collegially

[1]              All of the panellists work in appellate courts where decisions are made by collegial panels. It was really interesting to hear how the numbers vary from Court to Court. In summary:

(a)               Zambia: 10 judges

(b)              New Zealand: Six permanent members but sit on substantive appeals in a group of five.

(c)               Washington DC: a total nine judges on the Court that sit in panels of three. All nine judges sit en bloc if an overruling decision is being contemplated.

(d)              South Africa: 25 judges (11 who are women) that sit in panels of five.

(e)               United Kingdom: 12 judges that sit in a panel of five.

Baroness Hale talked about the “maths” theory of appellate courts: that three more minds are better than one and five better than three (again to laughter).

Retaining collegiality when there are differences was also discussed: it was agreed that not taking it personally played an important part. Judge Blackburn-Rigsby noted in her Court terms last 15 years – so that’s a long time you need to make sure you get along. Baroness Hale also noted the longevity of appellate courts and that while you may disagree on one occasion, you are sure to agree on another.

Access to justice

Finally, the panel was asked for their thoughts on access to justice as a particular “emergency” facing the legal sector right now. This was probably the topic that provoked the most anguish amongst the panellists: all agreed it is a critical issue right now in all their respective countries that has only been exacerbated by the pandemic.

Baroness Hale noted that until recently the UK did have a very good legal aid system. But recent cuts and changes to eligibility means it is unattractive work and they are unlikely to succeed in convincing the Government to reinstate the higher rates. This means the ideal is to prevent the cases from getting to the point where they need to go to Court. This can be done by making the processes more user friendly or providing online support or a portal that guides people through the process.

Mambilima CJ noted that criminal cases often take priority over civil cases. Legal services are expensive in Zambia but there is the added challenge for women in particular with the stigma of coming to Court for sexual violence cases. Some of these women then face pressure to withdraw their cases. She noted they had trialled expedient sexual violence courts where matters were disposed of in one day.

Judge Blackburne-Rigsby noted that there are barriers in Washington DC that some people may find surprising given its status as the seat of Government. She noted 1/6 of people live in poverty in that capital. They cannot afford legal representation. They are then forced to handle their cases alone but this of course affects their outcomes. They have instituted legal clinics where people can seek assistance in how to manage their case.

Winkelmann CJ noted in New Zealand lawyers were resistant to legal aid for a long time. She noted that it is a lawyer’s duty to provide legal aid however rotten the rates because it is what you signed up for. For her, she found that telling people’s stories is essential in writing judgments – even in scenarios where you may not be able to give those people a legal voice.

This panel was a real highlight in terms hearing personal stories of amazing and accomplished women. While it is nice to hear up-to-date developments in law, it is often the stories and experiences shared that make for the most meaningful moments.

Reported by Rachel McConnell