Day of Women Judges: Afghan women and questions for the UK

How the UK courts would benefit from diversity and inclusion.

Women judges and the Kabul airlift

On August 15, 2021, the Kabul airlift began. The Taliban took control of the Afghan capital, forcing hundreds of families to flee the country for their lives. Fawzia Amini, who had worked in The Supreme Court of Islamic Republic of Afghanistan, and her family, were among them. The Taliban hunted down many people, especially those who had worked for the American or British military, placing them on a “kill list.”

Women judges were among those who were most sought after by the Taliban. They had to go into hiding, and many narrowly escaped. Fawzia was despised by the Taliban for breaking numerous of their unfair values. She had sent many Afghan men to jail for heinous crimes like domestic abuse, assault and murder — topics which are largely ignored by the Taliban.

Pioneering work

It is so important to recognize the work that women judges carried out in Afghanistan.

They carried out justice for other women who were victims of violence, empowering them to speak up in front of a women’s court and share their cases.

This was pioneering work as women often faced unfair trials in front of male judges and prosecutors who, during trials of domestic abuse, let the men walk free, and even granted them full custody of their children if they were involved. Women were left with nothing and zero protection.

When the United States withdrew its troops from Afghanistan, it left many women judges and other female leaders in mortal danger. Women’s rights were going to be taken away under Taliban rule. Young girls’ access to a voice, education, sports, a future were quickly stripped away. It was a major failure on behalf of the international community.

Nonetheless, some women were able to reach out to British connections in law, such as Baroness Helena Kennedy. Thanks to Baroness Helena Kennedy’s courage and leadership, she raised millions of dollars to organize three aircraft to evacuate 103 judges and their families, totalling nearly 500 individuals.

Although most European Union countries did not permit airplanes arriving from Afghanistan to land, the President of Greece, Katerina Sakellaropoulou, who had formerly been a judge, welcomed the Afghan women. Several of them even delivered babies in Athens.

Fawzia Amini and her family came to the UK. In conversation with Helena Kennedy, she admits she hopes to try to practice law again.

Would the UK benefit from welcoming these women into the judiciary? Would their experiences improve our own legal decision-making?

The current make-up of the courts in the UK

The UK judiciary is definitely lacking in diversity, according to the latest statistics from April 2022.

Black, Asian, and minority ethnic men and women only account for 10% of judges.

White women hold 37% of posts, and white men make up the remaining 53%. The numbers are even lower for Senior Court roles. Only 5% are held by ethnic minorities while only 30% of posts are held by women overall.

Disappointingly, the UK courts are governed by a small, elite demographic group. The typical senior judge is a white man who comes from a particular socio-economic background. They walked the so-called “golden road” as they attended an exclusive private school and studied at Oxford or Cambridge University.

A totally different world to the one Fawzia and her colleagues experienced.

Improving the UK judiciary

The courts have been criticized for being “out of touch” with the population. In the UK, there are roughly 10 million people who come from ethnic minority backgrounds.

With mantras of democracy, inclusion and progress being echoed through every layer of society, the courts need to make a much-needed effort at appointing judges from different backgrounds. Especially with the rise of “allyship,” they have to make an effort to reflect diverse identities.

Solidarity and allyship are possible. Baroness Helena Kennedy revealed that it was mostly through women that she was able to raise the millions of dollars for the evacuation.

Why does the UK judiciary refuse to pull everyone together in the same direction?

The puzzle of impartiality

Leaders in the UK judiciary have long emphasized that a judge’s identity and their ability to be “a good judge” can be mutually exclusive. In other words, a judge’s identity is completely irrelevant to their selection and appointment because they have to be impartial in their decision-making.

This traditional and orthodox view of diversity in the judiciary has recently been challenged. Baroness Hale noted that it is not a judge’s beliefs themselves that matter, but rather the connection between their beliefs and how they go about their decision-making.

For example, women judges can provide a valuable and unique perspective as their lived experiences influence their decision-making in a way that male judges may not be able to understand.

Imagine a world where the Afghan women were welcomed and integrated into the UK judiciary, the profound impact that would have on the courts. Decision-making outcomes would certainly be different.

Recognizing biases

Practicing inclusion leaves room for more conversations on biases. When dealing with cases that include marginalized defendants, judges should always think about how their subconscious may be influencing their decisions.

Justice O’Regan, of the South African Constitutional Court who also served on the UK bench, believes that the task of judging in a democracy requires a self-conscious appreciation of the impact of one’s background on their way of thinking. One way to achieve this is for judges to surround themselves with people who are from different backgrounds and lived experiences.

Diversity does enable judges to interrogate prejudices and blind spots, ensuring that they do not mistake prejudices for so-called “simple truths.”

What’s next?

The debate over whether values from diversity benefit the courts rages on. It is not the case that all women adopt feminist perspectives or Black judges fight for widespread racial equality. However, the judiciary is a complex and dynamic environment which will face two decisions.

First, to adopt some form of diversity to ensure the courts represent the demographics of the UK.

Second, to get on board with diversity and inclusion as traditional systems are becoming increasingly challenged by international crises that force the UK to deal with unprecedented situations and arrivals.

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