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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.