Judges: appointing the right person for the job

JUDGES:
appointing the right
person for the job
I
n 2015, the Southern African
Chief Justices Forum (SACJF)
met for its annual general
meeting and officially
committed to creating a
set of regional principles
and guidelines on the selection and
appointment of judges in Africa.
“This was the start of what would
become the ‘Lilongwe Principles
and Guidelines on the Selection and
Appointment of Judicial Officers’: a
document created to safeguard the
independence and integrity of the
judiciary,” explains Chris Oxtoby, a
senior researcher for the DGRU who
worked with the SACJF to lead research
that contributed to the document.
“The first step was to conduct
thorough research into the law on paper
relating to judicial appointments across
the territories studied, which included
east and southern Africa,” he says.
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“We then went into the field and
interviewed all kinds of stakeholders
– from recently appointed judges
to lawyers and interested parties
from civil society – to find out what
was happening in practice and what
challenges they faced. In the end,
we managed to cover eight to 10
countries.”
But the research was not without its
challenges. As an example, he explains,
“In some countries, we discovered that
there wasn’t really a process at all and
that judges were still selected through
a ‘tap on the shoulder’ model in which
someone would pretty much just get a
phone call saying, ‘You’re now a judge.’”
In other places, the research revealed
vastly different views on the same legal
system. But according to Oxtoby, the
biggest challenge was distilling the vast
amount of information into something
coherent and useful.
TRANSPARENCY FIRST
AND FOREMOST
Once the research was complete, a
special subcommittee of pre-eminent
justices was formed by the SACJF to
draft the principles and guidelines.
“We didn’t want to be too
prescriptive, but if you look at other
similar international instruments, they
tend to be very high level. Whereas we
did want to go deeper into the details
of processes.
“It was at times difficult to walk
a tightrope between being overly
dogmatic and allowing for differences
in the way these processes played out
in different countries. But in the end, I
think we found a good balance.”
To illustrate this, Oxtoby explains
the differences that exist between
countries in the way judicial officers
are sourced.
“How do you get a prospective judge
to an interview situation?” he asks.
“In South Africa, judges have to
be nominated, but other countries
allow for direct application or
even something that’s more like
headhunting. We didn’t specify one
of these methods over others in the
Lilongwe Principles. But because of the
need to be sensitive to the particular
circumstances in different countries,
PHOTOGRAPH: ISTOCKPHOTO
A new set of guidelines and principles
that the Democratic Governance and Rights
Unit (DGRU) at the University of Cape Town
(UCT) contributed to are helping to improve
the process of judicial officer selection in
southern Africa.

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