ORDEAL BY GIANT EGO

SA’s JSC is badly in need of reform to curtail the inquisitorial grandstanding and point-scoring, and sharpen its approach to disciplinary matters

123RF/Tetiana Lazunova

Two countries, two weeks of Judicial Service Commission (JSC) hearings for significant vacancies. But it’s the differences between the two sessions, begun in Kenya and SA last week, that are most striking.

There were similarities, including a concern to ensure safe seating arrangements. In Kenya, this meant the hearings were conducted in a marquee. In SA, the JSC hired a conference room in Sandton, because the complex housing the office of the chief justice has no space big enough to ensure safe distancing.

But while everyone else was present in the room in Sandton, chief justice Mogoeng Mogoeng was, judging from the sound effects, sitting in a bird sanctuary — despite the courtroom background on his screen.

For candidates, the real difference between the hearings was put best by Kenya’s former head of public prosecutions.

At the end of his lengthy interview for the position of chief justice, Philip Murgor SC said he had watched recordings of previous JSC hearings to choose the chief justice, and had been disappointed by the role commissioners played in those hearings.

This time though, a memo by the Kenya Magistrates & Judges Association urged the JSC to consider “the brave souls” it would interview, and remember that each candidate has “a life” after the interviews, which would be affected by these hearings.

His experience, said Murgor, was that commissioners had heeded the call, and he thanked them for that.

The same cannot be said of the JSC hearings in SA to fill Constitutional Court vacancies.

Here, certain interviews were characterised by browbeating and attempts at humiliation — noticeably without intervention by the obviously distant Mogoeng.

This is partly a function of the makeup of the commission: an unwieldy 23 compared with Kenya’s 11. But it’s more than just the numbers.

In Kenya, apart from members of various parts of the legal profession, the JSC includes just two people, a woman and a man, who could be considered political appointees.

They are chosen by the president, with the agreement of the National Assembly, as public representatives.

In SA, in addition to the legal contingent, 14 commissioners are party politicians or are appointed directly by the president. And many appear determined to put their stamp on the process, rather than elicit the best a candidate has to offer.

The JSC in SA has a history of unfair and demeaning questioning. Who, from the days of the JSC’s first session, can forget the interview probing Kate O’Regan’s childminding arrangements, should she be appointed to the Constitutional Court? So when a Jewish candidate was asked, in the current hearings, whether Sabbath observance would interfere with his judicial duties, it’s clear how little has changed.

Rethinking the JSC

When interviews for SA’s chief justice take place later this year, hopefuls should be asked specifically about the JSC.

Do they agree that it’s time to rethink how the commission works? What, in principle, are the JSC’s questions intended to achieve, and should all candidates be asked similar questions? Is it not time for interviewing rules that protect candidates and guide commissioners as to what subjects and behaviours are off limits?

Those aspiring to the office of chief justice must explain how they would stop the JSC’s scandalous delays in disciplinary matters, something that undermines public perceptions of the judiciary.

Would a candidate be willing and able to exercise proper leadership in JSC hearings, stopping commissioners from point-scoring, and ensuring candidates are treated with proper respect?

These are questions the public is deeply interested in. As one observer of the Kenyan interviews said last week: “You [the JSC] are not alone in this; the public is also interviewing them.”

What, in principle, are the JSC’s questions intended to achieve?