On 3 June 2021, the Egyptian Supreme Council of Judicial Bodies made the historic decision to approve women’s appointments as judges and prosecutors to the Administrative Judiciary (also known as the State Council) and the Public Prosecution Authority (PPA), respectively.

These are the only bodies in the Egyptian judicial system that remain exclusively male. Weeks earlier, on 8 March (International Women’s Day), Egyptian President Abdel-Fattah el-Sisi surprised the public by issuing a long-awaited, albeit vague, statement, directing the minister of justice to seek ‘assistance’ from women in the State Council and the PPA.

The State Council then announced that it would – on an exceptional basis – transfer to its courts some women who already serve as administrative prosecutors and state lawyers at the Administrative Prosecution Authority and the State Lawsuits Authority, respectively. However, the PPA’s policy over appointing women as public prosecutors is still ambiguous.

Compared to other public bodies, in which women serve in various leadership positions, the judiciary is still reluctant to appoint women judges and public prosecutors. Currently, the percentage of women judges is just under 0.3%. However, the State Council and PPA’s openly discriminatory views against appointing women to the judiciary is peculiar.

State feminism and state of exceptionalism

The Egyptian state has followed a policy of exceptionalism in dealing with women’s judgeship. In 2003, female lawyer Tahani al-Gebali was appointed to the Supreme Constitutional Court by decree from then-president Hosni Mubarak, becoming the first female judge in modern Egyptian history. In 2007, another presidential decree was issued by Mubarak to appoint – on an exceptional basis – 30 female administrative prosecutors and state lawyers as judges in the ordinary judiciary (civil, economic, criminal and family courts). This was followed by a similar presidential decree in 2008, which appointed another 12 women to the ordinary courts by the same method.

This was in response to increasing pressure from the national, regional, and international community, which questioned the lack of women judges in Egypt compared to in most African, Arab and Muslim-majority countries. Egypt was pressured to implement international conventions dealing with women’s rights and gender equality, especially the UN’s Convention on the Elimination of Discrimination against Women, which it endorsed and ratified in 1981. The exceptional appointments of a handful of women judges mentioned above were an attempt to embellish the liberal image of Mubarak’s autocratic regime, which collapsed in 2011.

The regime had attempted to open the door for women’s accession to the State Council and the PPA. While the latter ignored all these attempts, the General Assembly of the Council convened “an extraordinary” meeting in 2010 and voted against the appointment of women judges to its courts by a sweeping majority of 334 to 42. The action was severely criticized by feminists and women NGOs.

The issue of women’s representation in the State Council and the PPA changed course after the revolution of 2011. Feminist NGOs put the matter of women judges on the table within the broader topic of women’s political empowerment.

Their demands are embodied in Article 11 of the 2014 Constitution, which clearly states that women have the right to hold a judicial office in all judicial bodies without discrimination. It has also been reflected in the formulation of the National Strategy for the Empowerment of Egyptian Women’, a policy document issued in 2017, in which Egypt pledged to increase women’s representation in the judiciary to 25% by 2030. However, the Council and the PPA have continued denying women law school graduates their constitutional right to be admitted to their ranks.

In 2015, the policy of appointing a few women to the judiciary by exception continued with a decree from President al-Sisi appointing 26 female administrative prosecutors and state lawyers to the ordinary courts as judges. Five years on, in December 2020, a single female law professor was appointed by presidential decree to the Supreme Constitutional Court. She is currently its sole female judge.

Yet the PPA and the Council’s all-male membership remains intact. In the Council’s recent call for vacancies of ‘assistant delegates’, the first rung on its judicial ladder, it accepted only applications from male law school graduates. And on 14 March 2021, the president of the State Council stated that the exceptional appointments would be the route of appointing women by transferring few female administrative prosecutors and state lawyers to the Council. This is similar to what happened in the ordinary judiciary in 2007, 2008 and 2015.

The women’s rights activists I interviewed believe that the exclusion of women from these judicial bodies cannot be separated from the prevailing patriarchal culture which deems women too incompetent to hold positions of authority. Considering these recent developments, how will women be appointed to the State Council and the PPA?

A promising step or a catastrophe?

There are several ways in which the appointment of women to the State Council and the PPA could occur. While some will radically help women, others will perpetuate the status quo, in which women’s appointments to the judiciary are the exception rather than the norm.

There is disagreement among women’s rights activists about the Council’s decision to make appointments by exception. While some perceive it as a promising first step towards women’s empowerment in the judiciary, others describe it as nothing but a ‘catastrophic’ perpetuation of the status quo.

There is mounting opposition by some women’s organizations and female law school graduates to the State Council’s decision. Omnia Gad-Allah, a prominent activist and founder of the Her Honor Setting the Bar initiative, has launched a national online petition to prevent the implementation of the Council’s gender policy decision. It also demands that vacancies be open to all law school graduates regardless of gender. The petition has also been adopted by human rights groups, women’s rights activists and women NGOs.

Although the PPA remains silent about how women will be appointed as public prosecutors, it is expected that its policy will differ little from the Council’s and that it is likely to also appoint a few more women administrative prosecutors and state lawyers to its ranks on an exceptional basis. Women appointees are more likely to work in minor specialized offices, such as the Family and Child Prosecution, or in prestigious departments in the Prosecutor General’s Office, which deals with external parties and international organizations to appease the international community. They are less likely to work in the main offices that investigate and prosecute criminal cases. If the plans to approve women to the PPA go ahead in this form, it will anger activists and female law school graduates and male public prosecutors alike. While activists could see it as a continuation of state exceptionalism, the male public prosecutors could view it as privileging women at their expense.

It remains to be seen which course of action will play out in the future. It is still unclear whether the latest developments will change this reality substantially. In this sense, the regular and normal route of appointing women and men to the judiciary appears to be the best and only way to achieve gender equality. However, given the protracted history of the State Council’s and PPA’s refusal to appoint women, the ‘exceptionalist’ policy is likely to be favored by Egypt’s male judges and prosecutors.