Selecting judges to transform our law
Not since the 1950s have the judges of South Africa been so much in the public gaze. The context today is utterly different at a formal level, yet there are discomforting hints of a similar desire by the executive and Parliament (read the dominant party, the ANC) to have a less independent-minded judiciary in place.
Then, the issue was the valiant but ultimately unsuccessful stand against the apartheid regime’s removal of the last vestiges of the non-racial franchise in the Cape, in the ‘coloured voters’ cases. The National Party won its battle against the Appellate Division through legislative fraud and by manipulating the judicial appointments mechanism to pack the highest court with those likely not to resist its schemes.
Tragically, and largely through the controversial and sometimes unethical conduct of Cape Judge President Hlophe over the past five years, the judiciary – and the wider legal profession – is destroying much of the excellent work done by the courts since 1994. Those appointed as judges, particularly to the highest court, the Constitutional Court, bear a huge responsibility to realise the words and values of the Constitution, which is why the judicial selection process is so vital, and particularly at this time. These bald assertions need amplification.
In the ‘never-again’ spirit of the constitution-making years, the secret, unaccountable and ‘executive-manipulable’ way of appointing judges in the past was replaced with a model which seeks to involve both politicians and lawyers, with some checks and balances and a striving for openness and accountability. So the Judicial Service Commission (JSC) is a large body, comprised of at least twenty-three members, with a fine balance in theory between professional and lay expertise.
The JSC has two main functions: recommending ‘fit and proper’ and ‘appropriately qualified’ persons to be appointed as judges; and acting effectively as a tribunal to discipline judges for misconduct of all sorts (in this capacity it sits without its party-political members, with the exception of the minister of justice, thus being reduced in number to 13 members). It is the latter function which has thrust the JSC into the limelight over the past five years, presenting a distressing picture of accusation, counter-accusation and racial division. In what follows, however, the focus will be on judicial appointments.
A few words about the process followed by the JSC in filling vacancies on the Bench are in order, before its outcomes and the current round are considered. After some hesitation when it first sat in 1994, the JSC has pursued a commendable openness in its activities: once notified of a vacancy by the relevant head of court, the JSC advertises for applications and nominations, shortlists those suitable for consideration, interviews such candidates in open session, but then retreats behind closed doors to select the most appropriately qualified candidate, whose name is then submitted to the president of South Africa, as head of state, for formal appointment. Two aspects of this process, which apply to all superior courts except the Constitutional Court, should be noted: first, the candidate recommended by the JSC must be appointed by the national president, who has no option to refuse or refer the selected person; and second, that section 174 (2) of the Constitution requires that ‘the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed’.
Appointments to the Constitutional Court follow a slightly different route, which is appropriate considering the authority which it wields by virtue of being the ultimate interpreter of the Constitution. At the last stage of the process, the JSC must identify (in practice it also ranks) sufficient nominees to fill the number of vacant seats, plus three. The president is not bound by the ranking but, if he thinks that there are not sufficient ‘acceptable’ nominees on the list, he must refer the list to the JSC, giving reasons for this view.
The JSC is then bound to supplement the list, and the president must appoint from this supplemented list: no further exchanges are allowed. However, there is one additional step which the Constitution requires of the president as head of the executive, which is to consult with the chief justice and the leaders of all political parties represented in the National Assembly. Significantly, he is not bound by the views of such consultants, although he must seek their advice in good faith. This last aspect is also required in the presidential appointment of the chief justice and his or her deputy. It is this part of the process which President Zuma recently appeared not to follow in announcing his chosen candidate before advising those whom he was required to consult, which indicated that he was giving insufficient weight to this important element of political inclusivity.
How has this system worked in practice? There are just over 200 judges in South Africa. In 1994, all judges were white males, except two white women and two Indian men. As of last month, the picture had changed remarkably as regards race, with 56% of judges being black, though less so in respect of gender (just 21% being women). All but one of the ten heads of court are black men. So it is clear that the demand that demography be considered in appointments has been heeded by the JSC. Many are of the view that we have reached a point where the ‘race and gender’ consideration should hold less sway than it has till now, but there are those who argue strenuously otherwise.
Currently, the Constitutional Court is composed of eight men and three women, and seven black and four white judges. Of these, the four whose fifteen-year terms on the Court are coming to an end and therefore must be replaced are one black man, one black woman, one white woman and one white man. While the Court has not yet established the kind of pattern of appointments that characterise other top courts (e.g. that there will always be one judge from a particular region, or that one will be an adherent of a particular religion, etc.), it is reasonable to expect that at least two of the new judges appointed will be women.
The JSC shortlisted a remarkably large pool of applicants for interviewing in early September. There are many recently-appointed members of the JSC among the ranks of its politicians and the presidential nominees, so it is difficult to predict how they will interpret their constitutional mandate. What is critical in the eyes of most observers, however, is that the legal system is in urgent need of transformation in line with the imperatives of our constitutional values. There is no necessary connection between such a vision of transformation and skin colour or sex, although the utterances of some of the members of the JSC indicate that they do not agree with this approach. It will be a source of great concern for the administration of justice in the future if the latter view holds sway in either the deliberations of the JSC or the decision-making of the president. We await the outcome of this process with anxious scrutiny. The rule of law is fundamental to any process of transformation under our Constitution, and judges of the highest integrity and innate independence are needed to maintain it.
Hugh Corder is a professor of public law at the University of Cape Town. He is also a member of the IJR board of directors.
© Institute for Justice and Reconciliation, 2009.