Appointment of constitutional adjudicators in Africa : some perspectives on how different systems yield similar outcomes

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.