How are judges appointed?
New principles from international working group
The Cape Town Principles look for a way that is neither a ‘tap on the shoulder’ nor a confrontation of powers
15 February 2016
A set of principles on the appointment of judges is being published today, 15 February 2016, by an international working group. The Cape Town Principles are available for download from http://www.biicl.org/bingham-centre/projects/capetownprinciples. The new ‘Cape Town Principles’ come at a time when the US is expecting to see a stand-off between the Executive and the Legislature over who should be appointed to the Supreme Court following the death of Justice Antonin Scalia. In contrast with the frequently confrontational US processes, or the ‘tap on the shoulder’ by a government minister that was the norm for so long in the UK and its former colonies, the Cape Town Principles focus on a ‘third way’ of appointing judges. This is to entrust the task to an independent commission with a broad membership in which judges themselves, and the legal profession, also have a say. Such bodies, most often called Judicial Service Commissions or Judicial Appointment Commissions, have become by far the most popular mechanism by which senior judges are appointed in Commonwealth jurisdictions. By 2015, more than 80% of Commonwealth member states had established such bodies, according to Bingham Centre research published last year.The Cape Town working group included experts from South Africa, the UK, Nigeria, Malaysia, Kenya and Canada.
By AARTI J NARSEE
A BARRAGE of political questions during this week’s judicial interviews affected the depth of interrogation of the four candidates vying for a single Constitutional Court post. Alison Tilley, of the Judges Matter Coalition, said: “I think it is unfair for these candidates, who were to be interrogated on their records, depth and experience, to then have the argument between the executive and judiciary played out.” The interviews, on Thursday, took place just a day after Chief Justice Mogoeng Mogoeng made the unprecedented move of seeking a meeting with President Jacob Zuma over the rising tension between the judiciary and the executive.
by Franny Rabkin
WHEN it comes to the Constitutional Court, it is a bit unfair that the Judicial Service Commission (JSC) has borne the brunt of criticism that there are not enough women on its bench.
The criticism should be directed at President Jacob Zuma because Constitutional Court appointments work differently to other courts.
The president’s role is a rubber stamp with the rest of the courts: he must appoint those who are recommended by the JSC. But for the Constitutional Court, the JSC has to give the president a list of names, with three more names than the number of vacancies, and he then makes his choice.
Since Zuma became president, there have been three rounds of interviews for the highest court.
In two of the three rounds, the JSC gave him female options to choose. But he has only appointed one woman to the Constitutional Court — Justice Sisi Khampepe in 2009.
In interviews that will be conducted on Thursday, all the candidates are women. They are: Supreme Court of Appeal justices Nonkosi Mhlantla, Zukisa Tshiqi and Leona Theron and KwaZulu-Natal High Court judge Dhaya Pillay.
An all-female list of candidates means that the next judge to be appointed to the Constitutional Court will be a woman – a positive and symbolic step.
By Tabeth Masengu
History in the making? A coup for activists of gender transformation? An opportunity to see some of South Africa’s finest jurists? These and many other questions will plague many of us when the Judicial Service Commission (JSC) interviews its four candidates, all women, for the Constitutional Court vacancy that was left by Justice Thembile Skweyiya when he retired in May last year. Judges Leona Theron, Zukisa Tshiqi and Nonkosi Mhlantla of the Supreme Court of Appeal (SCA), and Judge Dhaya Pillay of the KwaZulu-Natal High Court are
vying for the position in the highest court in the land.
Last year, Chief Justice Mogoeng Mogoeng was quoted as saying the JSC would take some time “before advertising the post left vacant ... This was so that the JSC would be spoilt for choice.” Admittedly, four candidates (the bare minimum required) for one Constitutional Court vacancy is not the long list he may have hoped for, but this is the first time the JSC will be presented with an all-female list for
such a position. The last interviews for the same court in 2013 featured an all-male list and, before that, the 2012 interviews had only one woman on the four-person list in 2012.