A life lived to uphold the promissory note called the Constitution
Key Dingake | Friday October 9, 2020 15:52
Her life was a quintessential cause for celebration, for a life well lived, of total dedication to the cause of justice, in particular, gender justice. In penning these tributes my abiding hope is that we, the servants of the law, and indeed ordinary members of the public, can draw appropriate lessons to contribute to a better world. With this particular tribute, I hope my daughters, and yours the reader, can find further inspiration in the life of this extraordinary Justice. Two weeks ago a friend of mine, Mimi Zilliacus from Melbourne, Australia, who knew of my respect of Justice Ginsburg, texted me to inform me of her passing. I knew she was in and out of the hospital for the greater part of the year, but did not expect that she would retire to sleep permanently so soon. I would like to express my sorrow at the passing of Justice Ginsburg, the most adored, respected, distinguished and resilient judge of our time. She was an undisputed rock of principle and a champion of equality.
Justice Ginsburg dedicated her career to gender equality before being appointed to the Supreme Court in 1993. She is often referred to as “the Thurgood Marshall of gender equality law,” and although she was not the first woman to be appointed to the US Supreme Court, she was, perhaps, the first impactful woman advocate of women’s rights in the Supreme Court. The first woman to be appointed to the US Supreme Court, Justice Sandra Day O’Connor, was not given to sweeping precedents, let alone as passionate as Justice Ginsburg on issues of gender equality. It is no exaggeration to say that with the passing of Justice Ginsburg the US Judiciary, the country and the world has lost a tireless campaigner for human rights more particularly the rights of the vulnerable and the marginalised. During her many decades at the bench she carved a name for herself in the area of gender equality. I met Justice Ginsburg thrice in my judicial excursions around the world at conferences, in the US, and on every such occasion I was struck that we were of the same mind on many thorny constitutional issues of our time, such as the death penalty, same sex relationships, abortion and gender identity. At our last encounter in Arizona, where we had breakfast that spilled over to lunch time, we spoke endlessly on how judges can play a role to uproot patriarchy! One of my memorable moments was receiving her call soon after my decision in Mmusi. Chuckling she said to me, “that was a beautiful rendition, although you were a bit cheeky, but I loved your judicial midwives metaphor - you must come here and talk to your brothers.”
Our views on the role of judges in advancing a fairer society within the limits of law were almost perfectly aligned. We exchanged notes on our experiences at the Bar and how both of us committed a chunk of our professional lives in litigating to extend the frontiers of liberty with mixed results depending on the extent to which judges were prepared to engage in transformative – and even disruptive judicial reasoning – the kind that my revered brothers Chief Justice Terence Rannowane, in the LEGABIBO case, Leburu J, et al, in the case of Letsweletse Motshediemang case, Moroka J in Kgaje v Mhotsha (Matlo a na otlhe case) and Nthomiwa J in the case of ND v Attorney General, embraced. These revered jurists decided to honour the call of history and made this world a better place to live in for those societies and the general law has sought to marginalise and deny their humanity – and not use law to exclude and humiliate. Their place in the annuls of history is secured.
In February 2019, on the occasion of my lecture on ‘Gender Discrimination, Sexual Reproductive Health Rights – the Role of the Judiciary in Southern Africa’ delivered at the University of California, Los Angeles in the US, Dr Paula Tavrow, introduced me as, “…the Botswana equivalent of Justice Ruth Bader Ginsburg” – an over-generous remark but one which humbled me considerably. In this piece I share some nuggets of her wisdom as discerned from some of her judgements. The US law reports are littered with progressive jurisprudence on gender equality that in many ways mirror her own personal struggles as a woman, who had to battle with retrogressive laws, toxic patriarchy and stereotypes. It is a matter of record that after law school, despite graduating at the top of her class she battled to be employed by male bosses, who doubted her abilities because she was a woman. As a Professor of Law she suffered the ignominy of being paid less than her male colleagues. And a sad and painful story is often told of how she would hide her first pregnancy in baggy clothes to guard against being fired.
Despite all this she was never bitter, she understood as many men and women of good will understand, that patriarchy is a societal menace that hurts everybody. Every judgement she authored on gender justice was a lesson to all, especially men, that laws predicated on gender stereotypes had no place in a modern society, and that the subjugation of women is a societal indictment that holds everyone back, including men. During the course of her career she battled with the jurisprudence of deficiency that sought to hold women captives of patriarchy. And as the Supreme Court grew more conservative, her dissenting opinions, in defence of equality and equal opportunities for all, also grew. One notable dissent came in 2007. It was in the case of Gonzales v Carhart. In this case the Supreme Court in a majority decision upheld the Partial–Birth Abortion Ban Act of 2003 as constitutional. The court held that the Act was not void for vagueness and that it did not impose undue burden on a woman’s right to abort based on its overbreadth. The majority comprised Chief Justice John Roberts, Clarence Thomas and Antonin Scalia, amongst others and Ginsburg was supported in her piercing dissent by Justices John Paul Stevens, David H Souter and Stephen G Breyer. Every time I read her dissent, I can’t help thinking that history will indeed absolve her! In the course of her piercing and blistering dissent she characterised the majority decision as ‘alarming’ and wrote: “…the Court deprives women of the right to make an autonomous choice, even at the expense of their safety. This way of thinking reflects ancient notions about women’s place in the family and under the Constitution – ideas that have long been discredited.”
I am certain that the perspectives that Justice Ginsburg espoused will continue to grow and because her perspectives are in accord with justice, no force on earth will stop them. As I once said, every historical epoch has its mood and the judges for that mood. Judicial midwives and a new generation of uncaptured jurists committed to a better society will have to do their bit even in the midst of resistance born of patriarchal ideology and inclinations. Looking ahead, I have no doubt in my mind that ultimately real and substantial equality between men and women will be the order of the day and the judges will help achieve that objective. This is what Justice Ginsburg worked hard for and many of us in the bench are committed to continue her legacy. Women have a right to be; to participate as equal citizens. In order to be able to do that, their right to autonomy and self-determination should not be unduly stifled. They must be allowed to control their reproductive lives. Fare thee well icon of gender equality. Fare thee well my revered sister. Her death heralds the loss of a woman whose moral integrity and commitment to justice could not be doubted. Her life will continue to serve as a beacon of hope for the attainment of true equality that works for all humanity. History will most certainly record and pronounce on the impact this singular jurist had on humanity – and I am certain history will absolve her. And although judges and the law are not the panacea for all social ills, those amongst us genuinely committed to justice, who regard judgeship not as a job, but a calling, must never stop, never get tired and always do our best in pursuit of justice, for the sake of our children, humanity and in memory of giants like Ruth Bader Ginsburg.
*Hon Justice Dingake is Justice of the Supreme and National Courts of Papua New Guinea and Court of Appeal of Seychelles