Clad in a traditional robe and jabot, Drew F. Cohen, J.D./M.B.A. ’12, B.A. ’08, has spent the past four months transcribing nearly every case heard before the South African Constitutional Court. The fledgling court, with formal traditions inspired by the country’s British roots, has only been around since 1994—and as a foreign clerk, Mr. Cohen gets to witness history in the making as the South African legal system continues to develop.
Months after obtaining a joint J.D./M.B.A. at the George Washington University Law School and School of Business, Mr. Cohen sifted through jobs for legal practitioners abroad. An opportunity came quickly: South Africa, which employs two to four foreign law clerks for its 11 justices, sought an American clerk for Chief Justice Mogoeng Mogoeng of the highest court on constitutional matters. The seven-month clerkship spans three of the court’s four terms. Mr. Cohen applied, and this February, he packed his bags for Johannesburg.
South Africa employs both domestic and foreign law clerks, generally aiming to have one foreign clerk from each continent. The clerks provide research, notes, procedural summaries and analysis. At the hearings, they take their seats in front of court justices and scribe entire proceedings. They collaborate during roundtable discussions and review different issues and perspectives regarding upcoming cases
“The seminars themselves are the most helpful. It reminds me of law school studying groups, when you’re hashing out ideas—but now there are actually practical, real consequences,” Mr. Cohen said.
Mr. Cohen emphasized that South African apartheid ended only about 20 years ago, and as a result, many of the country’s laws and constitutional doctrines are still developing. Participating in a system that is still emerging creates diverse experiences in the courtroom.
“The cases that come before the court are far more colorful than the cases in the United States,” Mr. Cohen explained. “The basic principles and doctrines of law, which are 300 years old in the U.S., are still being developed here.”
Mr. Cohen has worked on more than 30 cases so far, reviewing everything from the legality of pregnancy policies in local schools to the country’s right to enforce laws of foreign tribunals. Several cases have garnered international media attention, and Mr. Cohen has seen details of cases he has been involved in later fill pages of the New York Times and the Wall Street Journal.
One recent case is Mail and Guardian Media Limited and Others v. the Refugee Appeal Board and Others. Mr. Cohen said the case grapples with whether an absolute ban on media access during asylum hearings infringes upon the constitutional right of freedom of the press.
At the center of the case is a Czech native seeking South African asylum. After news surfaced he was involved with a notorious South African gangster, media outlets attempted to cover his extradition hearings. They were denied press access, Mr. Cohen explained, and sued, contending the secrecy of asylum proceedings violated the right of freedom of the press. The case was heard on May 14, but it will be three or four months before a final opinion is issued.
“[The case] advances competing democratic imperatives, namely, on one hand, ensuring that the public has access to information which engages public interest,” Mr. Cohen said. “On the other hand, confidentiality of asylum proceedings serves to protect the life and liberty of not only the asylum seeker, but also their family and associates in their home country.”
In addition to their work during legal proceedings, clerks also give tours of the Constitutional Court. These tours have given Mr. Cohen a chance to interact with influential political figures. So far, he’s provided tours for Chief Justice Ivor F. Archie from the Supreme Court of Trinidad and Tobago, Israeli journalist Gideon Levy and Southern District of New York Judge George B. Daniels.
Mr. Cohen’s clerkship ends in early September. After that, he is considering another overseas clerkship in Israel, hoping to deepen his unique experiences in South Africa.
“Each case, no matter how mundane, has an incredible impact on a basic principle of law,” Mr. Cohen said. “The institutions and doctrines are still evolving, and it’s neat to be able to see that evolution take place.”