Is the process for the appointment of South Africa’s Constitutional Court judges flawed?
The way you design a process theoretically determines the end result. A good process for the appointment of judges should, in theory result in good judges. And of course, the converse.
But what constitutes a good process is a matter over which reasonable people might disagree. Here in South Africa we have a system for selecting new judges which includes the majority and minority parties, as well as representatives of the legal profession. The JSC in South Africa, who are appointed to nominate judges, includes many politicians. This certainly raises eyebrows in other countries on the continent, and indeed worldwide, where judges and lawyers dominate the recommendation process.
However; when it comes to the Constitutional Court, the President has a discretion to appoint from a shortlist.
In a paper delivered at the Mistra-Tmali-Unisa conference held in November 2014, former Deputy Chief Justice Moseneke raised concerns about the “remarkable concentration of the President’s powers of appointment” with regards to the selection process of South Africa’s judiciary.
One of the powers the President has is to choose from a list of a minimum of four names sent to him by the JSC when it comes to Constitutional Court judges. Such a power was given to the President in Kenya in a legislative amendment and it is now the subject of constitutional challenge. The case is being made that such a power in the hands of the President amounts to a violation of the separation of powers. Can that argument be made in South Africa?
The process of appointment of Constitutional Court judges has certainly run into the doldrums. The JSC can’t just send through one name for appointment – they have to send three names more than the number of appointments to be made. So if its two appointments five names go forward, while if its only one appointment, then four names go forward. This results in the process being becalmed for long periods of time where less than four candidates put in applications for any one Constitutional Court position. Why this is, is the subject of another Judges Matter article.
Whether the process is fundamentally flawed is another question.
Is the appointment process for Constitutional Court judges in South Africa good enough? And if the process is good, does it in fact give us the results a good process should?