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
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