A critique of the superior courts judicial selection mechanisms in Africa : the case of Mozambique, South Africa and Zimbabwe

Abstract

The effectiveness of legal institutions is of paramount importance in consolidating democratic ethos especially in Africa s emerging democracies. In order to promote democratic governance, it is critical that the judiciary be constituted in a manner which facilitates the personal and decisional independence of the judges. This thesis examines the superior court judicial selection mechanisms in Mozambique, South Africa and Zimbabwe. As a critical element of an independent judiciary, the comparative examination of judicial selection processes in all three countries enables useful lessons on how each country can further enhance the prospects for politically independent and efficient judiciaries. The thesis begins by analyzing the judicial independence concept focusing on its theoretical foundations, how it is measured and the analysis of its different elements. To put the judicial selection mechanisms into perspective, an analysis of the leading judicial selection systems which have influenced countries across the civil and common law divide is undertaken. An important observation emanating from these discussions relates to the indeterminate nature of the judicial independence concept. It is hardly surprising therefore that countries utilize a variety of judicial selection mechanisms which basically reflect the different conceptions of judicial independence. In order to put the study into context, the thesis makes a comparative assessment of the politico-economic and legal contexts in all three countries. Significantly, critical points of convergence and divergence emerge in this assessment, the most obvious being the dominance of former liberation movements in the political landscape in all three countries. The thesis argues for clear constitutional and legislative frameworks governing superior court judicial appointments as well as the constitutional entrenchment of Judicial Appointment Commissions in all three countries. Important observations are made in respect of critical JAC aspects such as the JAC status, composition and appointment of members, and the procedures utilized in judicial selection. These observations are underpinned by feedback from stakeholders in the justice delivery system in each polity. The thesis identifies the criteria for judicial selection as a significant source of the controversy that bedevils superior court judicial appointments. The study critiques this aspect which is put into perspective in the Supreme Court judicial appointments case studies. The thesis observes that all three systems of judicial selection are grappling, albeit in different degrees, with balancing judicial independence and accountability in the selection of superior court judges. While the study concedes that politicians are unavoidable in the judicial selection process, it however argues for a clear boundary of political influence in the process. The study further proposes practical recommendations which address the identified gaps/weaknesses in each polity. These suggestions are informed by experiences in all three comparators, as well as lessons learnt from emerging global trends in superior court judicial selection. Overall, the study makes a case for a law reform agenda in all three countries. It is further argued that the adoption of the study s recommendations will enhance the prospects for politically independent and efficient judiciaries in Mozambique, South Africa and Zimbabwe. Notwithstanding this, the study s findings are also useful in other countries as well, especially new democracies in Africa which are still grappling with this key ingredient of judicial independence.