The lack of transparency in the JSC

IN October 2018, the Lilongwe Principles and Guidelines on the Selection and Appointment of Judicial Officers were formally adopted by the Southern African Chief Justice’s Forum (SACJF). The 15 principles and guidelines serve as a guiding tool for SADC on the selection and appointment of judicial officers by the Judicial Service Commissions (JSC). They were developed with reference to international instruments and are primarily based on the particular experience and challenges in African jurisdictions.

Namibia’s Chief Justice Peter Shivute is a member of the SACJF which adopted the Lilongwe Principles and Guidelines. As a departing point, Lilongwe Principles and Guidelines provides that the principle of transparency should permeate every stage of the selection and appointment process. Further, the appointment process should ensure extensive stakeholder engagement at all relevant stages of the process and that objective criteria for the selection of judicial officers should be pre-set by the selection and appointment authority, publicly advertised, and should not be altered during that process.

The principles set out the following evaluation criteria towards the achievement of transparency:

a) The public should be made aware of the persons and bodies involved in the various stages of the process;

b) vacancies should be widely advertised with reasonable time provided for candidates to be nominated, recommended, or to apply. That procedure should pay due regard to achieving the substantive objects and purposes of the selection and appointment process, rather than heed to administrative and procedural technicalities;

c) the criteria for the appointment, shortlisting, selection and decisionmaking process should be predetermined and publicly available. They should not be amended during the selection process;

d) subject to national laws, all records generated by the process should be documented and kept by the selection and appointment body, and be available to interested parties; and

e) the nomination of persons, appointment and assumption of office by a judicial officer should be publicised in order to ensure the integrity of the process. During November 2020, the Affirmative Repositioning Movement (AR), petitioned the JSC on the recruitment process of the Prosecutor General (PG), demanding that interviews be held in public and that the selection criteria for the suitable candidate be pre-set and published. Further, the process should start de novo until public stakeholders’ engagement on the criteria takes place. This was request was rather frivolously disregarded by the JSC.

The JSC derives its powers from the specific provisions of the Constitution on the appointments of Judges, PG and the Ombudsman. Article 85 of the Constitution established the JSC and makes it subject to the Constitution, and any other laws such as the Judicial Service Commission Act No. 18 of 1995.

Further, the JSC is entitled in terms of Article 85(3) of the Constitution to make such rules and regulations for the purposes of prescribing its procedures. Pursuant thereto, the JSC published its regulations with effect from 1 April 2011.

In summary, the JSC regulations prescribes procedures for the filling of judge vacancies in the High Court and Supreme Court. However, the JSC regulations hideously failed to prescribe procedures for the filling up of other vacancies within the jurisdiction of the JSC, such as the PG and the Ombudsman.

The JSC regulations fall short of the requirements of the Lilongwe Principles and Guidelines which were adopted by Namibia in that, the JSC regulations prescribes that interviews for the filling of vacancies in the high or supreme courts should be conducted in private, further, the vacancies are only advertised to designated organisations (Law Society of Namibia and Society of Advocates) who should presumably share the vacancies with their members. The criteria for the shortlisting, selection and decision-making process is not pre-determined and publicly available.

Surprisingly, qualified Namibians can only apply for such judge vacancies if they are nominated by the designated organisations. Shockingly, this would mean that an individual can never apply for a judge vacancy directly, unless nominated by the designated groups which is contrary to the Constitution. The AR movement views that the JSC is not transparent in its execution of its constitutional duties and must amend its regulations to give effect to the Lilongwe Principles and Guidelines.

Further, there is a need to enact regulations to provide for a transparent procedure, public interviews for the filling of PG and Ombudsman vacancies. The secrecy in the operations of JSC is not in the best interest of the aspirations of the Namibian people. Any public task which is conducted in private has one result written all over it, CORRUPT!

*Maitjituavi Stanley Kavetu is a corporate lawyer and serves as the Head Legal of the Affirmative Repositioning Movement (AR). The views expressed herein are his as guaranteed in terms of Chapter 3 of the Namibian Constitution.