Abstract:
The last decade has seen the judiciary’s legitimacy come under increasing scrutiny as
more and more sensitive and politically charged battles are fought in the courts. These
have not only placed constitutional adjudicators in awkward situations but raised
questions about how they are chosen. The process of selecting judges, generally, is
probably one of the most powerful and effective means that could be used by the other
two branches of government to interfere with and influence the judiciary. Are they
chosen through procedures that ensure the appointment of persons based on their
technical and professional merit as well as their ability to decide matters
independently, objectively and fairly? Is there any constitutional design that can
facilitate the appointment of the calibre of independent-minded judges that are needed
at a time of tremendous change and when the threats to sustaining Africa’s fragile
attempts to entrench an ethos of constitutionalism, good governance, protect human
rights and respect for the rule of law is under siege by pro-authoritarian forces
masquerading as democrats?
This paper critically examines, compares and contrasts the systems that operate in
some Anglophone, Francophone and Lusophone African countries. It starts by
underscoring the importance and significance of the method of appointing
constitutional adjudicators. It then examines the divergent approaches to the
appointment of constitutional adjudicators. From an analysis of the different
approaches used, it shows that political involvement, and sometimes interference
leading to politicisation of the judiciary, is a common phenomenon in all jurisdictions
on the continent with the differences being only in the degree of interference. It,
therefore, proposes constitutional entrenchment of a model of constituting the Judicial
Service Commissions or Conseil Sup erieur de la Magistrature that limits the powers
of the executives, who often also control the legislature. Whilst it is clearly
undesirable both from the perspectives of the law and that of political legitimacy to
exclude politicians from playing any role in the appointment of judges generally and
constitutional adjudicators in particular, the paper argues that their role should be
reduced to ensure that they will not be in a position to manipulate or control judges.
