Thursday, October 23, 2014
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South African Courts at Risk

PRETORIA – South Africa’s courts can be impressive – as demonstrated by Pretoria High Court Judge Hans Fabricius’s recent ruling that the country’s prosecutors must act against known torturers from Zimbabwe. But those same courts are under threat from an appointment process in which politics and apathy are increasingly determining who sits on them.

This problem is especially apparent in the struggle to prepare a short list of suitable applicants for a vacancy on the Constitutional Court – a position that was once considered one of the best jobs in the South African legal profession. It is difficult to find qualified judges, and once found, they frequently do not want to be considered.

The problem partly reflects a lack of consensus about the criteria that a judicial candidate must satisfy. Moreover, the African National Congress, the majority party, exercises influence on the Judicial Service Commission, the constitutional body responsible for recommending candidates to South Africa’s president for appointment. As a result, the JSC is in danger of disintegrating.

The politicized nature of the appointment process has resulted in civic apathy: excellent candidates are refusing nomination. Some say that they simply do not want to subject themselves to a process that they no longer regard as credible.

Other potential candidates believe that the currently vacant seat on the Constitutional Court has been earmarked for Ray Zondo, who, as acting judge, has already been sitting on the tribunal for an extended period.

Recent JSC interviews for Supreme Court of Appeal and High Court positions have done little to dispel the perception that certain appointments are foreordained. Many interviewees were dealt with in a perfunctory manner, with extraordinarily short interviews – ten minutes – which caused at least one potential Constitutional Court candidate to decline nomination shortly before the latest deadline for nominations to the court (the previous deadline had to be extended, owing to a lack of qualified applicants).

Other potential nominees say bluntly that they do not want to be members of a court led by Chief Justice Mogoeng Mogoeng, citing “over-promotion” of those with modest credentials and professional experience at the expense of more qualified candidates. Many accomplished and brilliant candidates fall into this category, not least Deputy Chief Justice Dikgang Moseneke.

Over the last few weeks, we, as well as others, have sought to encourage the nomination of progressive judges to fill the Constitutional Court vacancy. In particular, because just two of the ten current judges are women, we were eager to encourage the nomination of female candidates. Of eight highly qualified female judges and constitutional law professors who were approached, only one was willing to accept the nomination.

This recent experience reveals another aspect of the problem, which deserves no less attention: a lack of activism from progressive civil-society organizations.

South Africa’s constitution and institutions are, and should be, contested domains. Contestation implies activism. In the end, the JSC is likely to be only as good as South Africans’ collective willingness to apply sufficient political pressure to ensure that it honors constitutional obligations, rather than succumbing to divisive and deeply damaging levels of partisanship.

Most human-rights organizations, women’s groups, and labor unions recognize the relationship between the rule of law and a progressive interpretation of constitutional rights, on the one hand, and the values and worldview of the judges appointed to the bench, on the other. But few are active in engaging with the JSC-led nomination process. For whatever reason – lack of time, energy, resources, or strategic foresight – they have failed to devote sufficient focus and attention to the matter.

Thus, when the JSC is presented, for example, with an all-male shortlist, it cannot help but to recommend a man to the president for judicial appointment. Women’s groups lose the right to complain about the lack of women on the bench if they fail to nominate women for vacant positions.

Similarly, human-rights groups and other progressive organizations cannot complain about the shifting jurisprudential balance on the Constitutional Court if only conservative-minded jurists are being nominated for vacancies. In 2009, many failed to act when Mogoeng was first interviewed for a Constitutional Court position.

Civic organizations should now modify their priorities before it is too late. They should not only add judicial appointments to their core agenda, but also be active in persuading suitable candidates to accept nomination, and then in building support for their candidacies.

South Africa has become an important case study of why active citizenship is so important in guaranteeing institutional integrity and promoting social change. If we vacate this space, we have only ourselves to blame for the outcome.

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