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Judges' appointments and the threat to judicial independence

KEY DINGAKE
This paper discusses the process of appointing judges in Botswana, Swaziland, South Africa and Kenya. The process of appointing judges is one of the major indicators whether a country subscribes to the rule of law and democracy.

A politicised appointment process that pay lip service to merit inevitably produces judges in name only and will impact on the judiciary many years after the appointment process. It is crucial that the process be fair, transparent and merit based and enjoys public confidence.

At the end of the 18th century English philosopher John Locke, who strongly influenced the English Revolution of 1688 and the American Revolution of 1776, wrote that established laws with the right of appeal to independent judges are essential to a civilised society and that societies that do not have such a right are still “In a state of nature”. Consistent with the thinking of philosopher Locke, modern constitutional law theories often emphasise the importance of an independent judiciary as an indispensable element of the separation of powers and the rule of law.

The rule of law as a constitutional concept can only have meaning in a society that has an independent judiciary. The manner in which judges are appointed has a bearing on the independence of the judiciary.

Judges who have been appointed on the basis of membership of political parties and or political considerations may not be perceived by the public to be impartial and independent.

Indeed, history has proven time and time again that if politicians are permitted unfettered powers in judicial selection, the whole administration of justice is more likely to be put into disrepute.

An assessment of whether a judicial selection process promotes an independent judiciary turns on two important considerations:

i. The first consideration relates to the criteria for judicial selection. Constitutionally entrenched criteria for judicial selection are an important safeguard against appointments motivated by political considerations.

ii. The appointment process should ensure that persons selected have the necessary qualifications and experience. Generally, the prospects for an independent judiciary are enhanced when the judicial selection mechanism are transparent. Openness and transparency in the manner of selecting judges allows principled public debate about the suitability of the judge. Transparency is often manifested by publicly advertising judicial vacancies and the criteria for selection and conduct of public interviews.  

 

Background Information

The importance of building solid institutions that enjoy public confidence is an essential feature of any successful democracy. Several studies have also shown that countries with strong rule of law credentials tend to do well economically.

Most theories of judicial independence highlight the significance of judicial selection systems as a key and indispensable element of judicial independence. It is therefore extremely important that mechanisms of judicial selection must aim at producing judges whose independence, integrity and impartiality is not in doubt.

Judicial independence is enshrined in several international and regional human rights documents as well as in most national constitutions.

It is one of the fundamental building blocks for good governance and as emphasised in the Commonwealth Principles on Promoting Good Governance and Combating Corruption (the Commonwealth Principles): an independent and competent judiciary, which is impartial, efficient and reliable, is of utmost importance to any democratic state.

Within the sphere of judicial appointments, there are debates about how the judges’ selection process can be made more transparent and better able to identify talent and enhance gender parity from a diverse pool of candidates, and how the appointment system can generally be designed to function in a way that strengthens the independence of the judiciary, public confi¬dence in the administration of justice and the rule of law. The challenge of meeting these expectations increasingly falls to independent judicial appointment bodies, a model chosen by a majority of commonwealth countries.  In contrast to the frequently confrontational US processes, or the ‘tap on the shoulder’ by a government minister that was the norm for so long in the UK and its former colonies, the judicial services commission (JSC) model of appointing judges has become strikingly popular.

This method entrusts the task to an independent Judicial Service Commission or Judicial Appointment Commission with a broad membership that typically includes judges, lawyers and even lay representatives. By 2015, more than 80% of Commonwealth member states had established Judicial Services Commissions, according to Bingham Research Centre. 

In the US, the judicial election processes have been negatively impacted by the so-called ‘dark money’. Judicial elections were first adopted as a reform, to respond to concerns that judges were too close to the governors and legislators responsible for appointing them. A number of States, in the US, elect judges. This has raised serious concerns over the influence of money in the election of judges and whether this does not undermine judicial independence. It is also argued by some that the election provides an opportunity for conflicts of interest that may undermine the dispensation of justice. It is argued that it is unacceptable to raise money from lawyers and parties who would at one point appear before the judge they sponsored.

However, there are those who are opposed to the appointment process because to them, appointment is like anointment and therefore not good for society. 

Supporters of the election method argue that the appointment process is characterised by “behind the scenes” influences, as compared to elections that are largely in the open and not subject to deal making.

In England and Wales judges are appointed through the mechanism of judicial services commission. Since April 3, 2006, the Judicial Appointments Commission has been responsible for selecting judicial candidates solely on the basis of merit, good character, and with a view to promoting diversity in the range of persons available for judicial selection. Similar bodies have also been established to select candidates for judicial appointments in Scotland (the Judicial Appointments Board for Scotland) and Northern Ireland (the Northern Ireland Judicial Appointments Commission).

The English and Welsh Judicial Appointments Commission consists of a chairman and 14 other Commissioners, all of whom are recruited and appointed through open competition except for three judicial members selected by the

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Judges’ Council or the Tribunals’ Council and members who hold their positions ex officio. 

Judicial independence does not exist so that judges may do as they please, and undermine the rule of law: it exists to enable judges to deliver impartial justice free from external pressures, for the benefit of the community.Academics and lawyers need to be more vigilant in ensuring that judges can operate in environments in which they can exercise their functions without fear, favour, or prejudice. 

An independent, impartial, competent and ethical judiciary is essential to the rule of law. It is necessary for the fair and impartial resolution of disputes, for the interpretation of a written constitution and the clear, just and predictable application of the law, and for holding governments and private interests to account. Ensuring that the judiciary is fit to perform these tasks – often in situations of considerable pressure – requires a sound institutional structure to support the courage and integrity of individual judges.

The legal framework for that structure, in any jurisdiction, must include:

(a) the system by which judges are chosen and appointed;

(b) the terms of their tenure; and

(c) the mechanism for deciding whether a judge should be removed from office.

In light of the above, important questions arise in each of these areas:

l who should appoint judges and by what process?

l what should be the duration of judicial tenure and how should judges’ remuneration be determined?

l what grounds justify the removal of a judge and who should carry out the necessary investigation and inquiries?

The areas of commendation for the Botswana judicial appointment process are as follows:

Advertising vacancies – The JSC has begun to move away from head-hunting and is now publicly advertising vacancies for the High Court and the Magistrate Courts. This is a welcome move towards transparency and widening the pool of candidates for judicial office. 

Role of the Law Society of Botswana – The Law Society of Botswana (LSB) has taken a keen interest in driving reform in judicial appointments in the country. The LSB has engaged in litigation to enforce constitutional compliance when it comes to appointments.

The LSB sought to compel the President to appoint judges according to the recommendations of the JSC. The President had been sitting on names for a year when the LSB decided to institute litigation. The LSB argued that the working of the Constitution which requires the President to appoint judges on the advice of the JSC’ required that the President abide by the decision of the JSC.

The LSB lost in the High Court, but won in the Court of Appeal. The LSB has also developed a position paper of the appointments of judges in Botswana.

Public representation on the JSC – The Constitution makes provision for one ordinary citizen who is not a legal practitioner to be appointed to the JSC by the President. This allows for the public to be directly represented by an individual who is not formally part of the structures of government.

 

Adverse observations are as follows:

Lack of Transparency - The judicial appointment processes in Botswana are shrouded in mystery. Very few people know of the process. Interviews are held in camera.

Court of Appeal vacancies not advertised – The JSC is still not advertising vacancies for the Court of Appeal. There is no rational basis for the differentiation between the High Court and the Court of Appeal appointment procedures. The JSC, therefore, could do better with the Court of Appeal appointment process.

Absence of JSC operating procedures or regulations – The JSC does not have guiding operating procedures and guidelines.

Shortlisting of candidates by the JSC – It is not publicly known who in the JSC does shortlisting, and on what criteria. This makes the process less transparent.

Presidential influence – Judicial appointments in Botswana appear to be largely driven by political considerations, and the executive has much influence on who is appointed. Of late there has been an outcry from the public, as well as from the legal profession over the appointment of inexperienced judges.

Domination of JSC by Presidential appointees – The JSC is dominated by individuals appointed by the President. There is very little independent representation.

It is recommended that at the very least, the JSC must be dominated by members of the legal profession. All members of the JSC are presidential appointees’ except the member of the Law Society. Limited participation of members of the public and civil society – There is zero participation of civil society organisations and members of the public in judicial appointment processes in Botswana. 

Differences in the appointment of judges - The judges of the Industrial Court of Botswana are appointed in terms of the Trade Disputes Act as opposed to the Constitution. The JSC is not involved in their appointments, notwithstanding that the industrial court is of a court with concurrent jurisdiction with the High Court; so it is important that the appointments to that court mirror those of the High Court.

Questions of independence of JSC Commissioners – The LSB has been engaged in debate on whether a representative of the LSB on the JSC is not required to report to the LSB and to get directions from the LSB.

There is a divergence of opinion on this aspect, and the Law Society, at one point, had to withdraw its representative from the JSC for failure or refusal to report to the LSB and to take instructions from it. Judicial discipline – The Constitution is silent on the process to be followed in disciplining judges. It was recommended that the law should be clear on the precise process to be followed when disciplinary proceedings are being instituted against a judge or judges.

*Dingake, a former Botswana High Court judge, is a Justice of the Supreme and National Court of Papua New Guinea



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