The challenge that remains is for us to chart a new path through the new constitution to ensure that no individual, group or interest enjoys unfettered power to appoint and promote judicial officers. The appointment process must ensure that only those possessing the required legal skills and competency, undoubted integrity and solemn commitment to the protection of human rights, efficient delivery of justice and promotion of the rule of law are chosen.
The best practice in the appointment of judges in my view is provided for under the South African constitution. Of course, like any beautifully written constitution, its fate lies with the integrity of persons who are given responsibilities under it. But it has aptly foreseen and averted some of the many problems that have been brought to light by the recent appointments and promotions.
In terms of the South African constitution, the president appoints the Chief Justice and Deputy Chief Justice after consulting the Judicial Service Commission (JSC) and leaders of political parties represented in parliament. Before appointment of a judge to the SA Constitutional Court, the JSC submits a list of nominees to the president. The list must contain three more names than the number of appointments to be made. The president must then appoint the judges from the list after consulting the Chief Justice and the leaders of political parties represented in parliament.
Where the president is unhappy with the nominees and is unable to fill all the vacancies existing from the list, he is required to advise the JSC with reasons why the nominees are unacceptable. The president is required to provide reasons as a protection against abuse of power. The president may not for example state that some of the candidates are not suitable because they have been members of an opposition party.
The constitution provides that any “appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer” and that “(T) he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”. An additional requirement for South African citizenship applies to appointments to the Constitutional Court.
In the event that the president decides against filling all the vacancies from the initial list, the JSC is required to supplement the names and return the supplemented list to the president. The president is required to make the outstanding appointments from the new list. He cannot send it back again.
And so, the president’s objections are limited by the required qualifications. More importantly he may only have one bite at the objection process.
The president appoints the President and Deputy President of the Supreme Court of Appeal after consulting the JSC. The Supreme Court of Appeal is the second highest court and virtually the highest in matters that are not constitutional. With regards to the appointment of all other judges including judges of the High Court, the president appoints on the advice of the JSC.
In Lesotho, for example, ordinary judges are appointed by the King “acting in accordance with the advice of the Judicial Service Commission”. As regards appeal court judges, the appointments are made by the King “acting in accordance with the advice of the Judicial Service Commission after consultation with the President (of the court)”. The provisions clearly make a difference between mere consultation and “acting on advice” of a body such a JSC.
In South Africa, when the president appoints heads and deputy heads of the country’s highest courts, he is required to consult first before he makes his decision. With regards to other appointments, he must act on the advice of the JSC. In fact, with regards to all other judicial appointments the president cannot even motivate the appointment of certain persons to be judges. The JSC has to generate the nominations to him.
This is clearly different from our situation in Zimbabwe where the president himself (or as suspected through his political agents) nominates judges and appoints them irrespective of the advice of the JSC.
The practice in South Africa is that whenever there are vacancies, the JSC announces the existence of vacancies publicly. Malawi and Botswana have in the recent past advertised judicial positions. In Zimbabwe we often learn of existence of vacancies through the news of swearing-in of new judges. It is said that the Minister of Justice in fact approaches potential candidates. Claims by one lawyer that he was approached and offered a judgeship on condition that he would rule in favour of the state were made a few years ago. Notwithstanding the denials, the opaque nature of approaches and the appointments sully the process.
The South African vacancy notice states that the interviews will be public and that members of the public and the media will be entitled to be present. The notice also states that any persons or bodies nominating a candidate can motivate their appointment by referring the JSC to the candidates’ qualifications and general fitness for appointment. The candidates are also advised that they may seek a “clearance certificate” from their relevant professional body (eg Law Society or Bar Council) confirming their good standing. In Zimbabwe, there are no public interviews. I doubt even private ones take place. The JSC seems to receive a fait accompli.
For those who are already judges and are seeking promotion public interviews are also applied. In addition, in their nomination papers, they are required to justify and motivate appointment through their academic record, record of publications, reported judgements, significant decisions, record on appeal, record of reserved judgments and promptness with regards to delivery of judgments. They are also required to indicate their most significant contribution to the law and the pursuit of justice. This process ensures that those who may have been appointed before do not automatically qualify for further elevation unless they have shown great performance in their current office. This ensures that only those judges who perform well at the High Court deserve further elevation. It also ensures that judges are not promoted against their will!
For those seeking their first appointment to judicial office, their motivations must indicate academic record, areas of interest in the law, publications (and whether cited or not), frequency of court appearance, variety of legal work, most significant cases appeared in, community involvement, most significant contribution to South African law, disciplinary and criminal record, among others.
In Uganda, they have articulated in their Constitution the specific requirements for judicial office. The Chief Justice must be a person who has either been sitting at the Supreme Court for 20 years or has practised as an advocate for that long. Relatively strenuous periods of qualification are set out for other judicial officers.
While these nominal qualifications seem to hold, there is need to spell out additional qualities expected of judicial officers.
No such vetting process seems to happen in Zimbabwe before the president sends his names of proposed candidates to the JSC, though I have heard of visits to rural villages of proposed candidates by intelligence agents prior to appointment.
The nomination process and the interviews of those who are short-listed provide the opportunity for the public, interested professional bodies and JSC to examine the qualification of the candidates, their performance in their respective careers and their suitability for judicial office. The tragedy with the process in Zimbabwe is that the nominations come from the executive via the president. He is not required to go through any process in assessing suitability. He consults the JSC but against their advice can still go ahead with the appointment or promotion. The president is not bound by the advice of a body that should in theory have greater knowledge and expertise with regards to assessing judicial suitability and performance.
This is indeed a tragic set of circumstances.
The composition of the JSC itself needs to be reviewed so that it does not become a proxy for political interests. To keep the system operating as it has will ensure that the judges we have in our courts remain subject to political interference.
Tererai Mafukidze is a lawyer
By Tererai Mafukidze