Financial Mail

CHIEF JUSTICE RUCTIONS

Three African countries are shortly due to select new chief justices. The process — and transparen­cy — of appointmen­t couldn’t be more different

- @carmelrick­ard BY CARMEL RICKARD

Three countries in Sub-Saharan Africa need a new chief justice soon: Kenya, Zimbabwe and SA. Few Kenyans will be unaware of the search for a successor to chief justice David Maraga, who retired earlier this year. The Judicial Service Commission (JSC) has been engaged in a well-publicised search for suitable candidates and 10 people will now be interviewe­d in hearings lasting a fortnight.

The JSC met with many interested parties in February and March to canvass views on the recruitmen­t and selection process. Among others, commission­ers had discussion­s with the faith-based sector, media editors, trade unions, the private sector and representa­tives of organised civil society.

The transparen­cy is astounding. A booklet produced by the JSC for the occasion explains why: “Under the constituti­on of Kenya, judicial authority is derived from the people and vested in the judiciary. Additional­ly, participat­ion of the people is one of the national values and principles of governance” provided for in the constituti­on.

Apart from the constituti­on, the Judicial Service Act requires that the JSC should involve members of the public in the process. Hence, the detailed meetings to ensure “public participat­ion and stakeholde­r engagement”.

All these preliminar­y meetings are listed in the electronic booklet, along with a succinct biography of each candidate (and each JSC member), with a clickable link to examples of their written work. A neat flowchart illustrate­s the appointmen­t process: after postinterv­iew discussion­s, the JSC publicly announces the name of the candidate it finds “most qualified”. The name is then forwarded to the president of Kenya, who invites parliament to vet the candidate. Once the parliament­ary vetting is complete, the president makes the appointmen­t official by notice in the Kenya Gazette and with a swearing-in ceremony.

In short, it would be hard to imagine a more open and responsive system, or a process that involves more sectors. By the time the chief justice is announced, Kenyans will surely feel they have been involved, at least in a representa­tive way, in the selection and appointmen­t of the judicial leader.

The contrast with Zimbabwe could not be more striking. That system, once reasonably open, is about to change fundamenta­lly with a constituti­onal amendment, approved by both houses, merely awaiting presidenti­al signature.

When it comes to selecting the top three judicial positions, JSC oversight is gone completely. The chief justice, deputy chief justice and high court judge president will all be chosen directly by President Emmerson Mnangagwa.

He gets a completely free hand. He will run his nominee past the JSC, but the commission is powerless. There will be no public interviews for any of these three positions, no public input, and no attempt to ensure “stakeholde­r engagement”.

Zimbabwe’s chief justice, Luke Malaba, must retire on May 15, and there is simply no word about what will happen after that date.

It is widely assumed Mnangagwa will sign the legislatio­n giving him these new powers in time to announce, at his pleasure, the name of the person he has picked for the position.

Threat from Zuma camp

What about in SA, where chief justice Mogoeng Mogoeng, leaves office in October? Preparatio­ns have begun to find a suitable successor and, while perhaps not quite up to Kenyan standards, the process will be open and transparen­t.

But it’s a good moment to reflect that everything could change in an instant. Continued attacks on the judiciary — a strong theme in recent remarks by former president Jacob Zuma — make it clear that if Zuma’s supporters were to seize power in the ANC, there would be a radical review of the constituti­onally enshrined role of the judiciary. The Harare blueprint, and worse, would be on the table, and our hard-won transparen­cy and accountabi­lity in the judicial appointmen­t process would head the scrapheap list.

It would be hard to imagine a more open and responsive system for appointing a chief justice than Kenya’s

 ??  ??
 ??  ?? 123RF
123RF

Newspapers in English

Newspapers from South Africa