In Lesotho, five judicial nominations by the Judicial Service Commission were refused ratification by King Letsie III in September 2020. The government eventually appointed a new JSC headed by a new Chief Justice, but even that has failed to resolve the problem: citing financial difficulties, the government has put all new appointments on hold. As a report by the SADC Lawyers' Association noted in March, the problems of Lesotho are about lack of resources almost more than anything else.
In Zimbabwe, where the rule of law is already in serious trouble, a new constitutional amendment extending the terms of office of certain judges, has caused a whole raft of legal challenges. The amendment allows the Chief Justice and other judges of the apex court to apply to the President for an extra five years. This is an application that the President may or may not grant, entirely at his discretion.
The first legal challenge against the extension of the term of office of Chief Justice Luke Malaba led to the court finding that neither he nor any other judge presently in office could benefit from the amendment, and that he had legally ceased to be CJ from his 70th birthday. One of the many problems raised by the decision was who should hear the appeal that was almost immediately filed against the outcome: all the then members of the Supreme Court had been cited in the first case since they, too, were affected by the constitutional amendment.
That question was resolved last week. Though an urgent application was brought during the week to prevent it, President Emmerson Mnangagwa appointed six new Supreme Court judges from the ranks of the High Court. The challenge had been based, on, among other grounds, a failure by the JSC to interview any candidates who might be considered for the position and who were not already members of the judiciary. Since Mnangagwa appointed only High Court judges to the Supreme Court, that argument would fail, and it is unclear whether the case will continue. Whatever happens, however, the picture that emerges is of an executive exercising undue influence over the judiciary and judicial appointments.
In Kenya, 41 judicial nominations have been waiting formal presidential ratification since mid-2019 (one of the nominees has died in the interim, however). President Uhuru Kenyatta hinted at 'integrity concerns' with certain candidates and he refused to act.
Despite a court order that the appointments could not be refused by the President, nor could the JSC be ordered to re-think its list, there has been no movement on the problem. Until last week. Out of the blue it appears, President Uhuru Kenyatta appointed or promoted 34 judges last week. The JSC's nomination of six others was ignored. The previous CJ, David Maraga, had made his position clear: appoint all or none, he said.
Quite what, if anything, the new CJ, Martha Koome, might have told Kenyatta in private meetings is not clear. She participated fully in the swearing-in ceremony, however – even being seen making an apparent bow to Kenyatta, a gesture picked up and commented on in social media – along with all the 34 new appointees. But afterwards she issued a statement calling on the President to appoint the remaining six, saying there was a judicial shortage in Kenya and they were needed. Reaction to that statement from judicial commentators was sharp: the six had to be appointed, not primarily because of a shortage, they said, but because it was the law and because of the court judgment that had ordered them all to be appointed.
Legal steps have already begun to challenge these appointments – and non-appointments – and experts have been expressing their deep concern about the situation since the unexpected ceremony.
A Matter of Justice asked judge and academic, Key Dingake, who has written on the judicial appointments' systems of Kenya, Botswana, South Africa and Swaziland (now Eswatini), for his views on the situation. Dingake, who began his judicial career in Botswana and now serves on the apex courts of Seychelles and Papua New Guinea, commented: 'It is inimical to the rule of law, anywhere in the world, for a President to choose which law to obey or disregard.' On the question of the President's duty in relation to JSC nominations, he said, 'A reading of the relevant sections of the Kenya 2010 constitution seems to suggest that the role of the President in the appointment of Judges is to rubber stamp the recommendations of the Judicial Service Commission. The function is purely ceremonial.'
One of the issues that concerns commentators is that among the six excluded judges are two who sat on the panel that recently found against Kenyatta's Building Bridges Initiative (BBI), a plan that proposed wide-ranging changes to the country's constitution. Kenyatta has not disguised his anger with the court's decision, and many conclude that the exclusion of these two judges from promotion is a form of punishment for their decision. Commentators say it is to prevent personal favours – or the appearance of them – by the executive, that the constitution tasks the JSC with nominating candidates and leaves the President to rubber-stamp the commission's expert decisions.
Like other commentators, Dingake also noted the problem of excluding from promotion the two judges involved in a decision critical of the President. 'Judges Joel Ngugi and George Odunga, who were part of the panel in the now famous BBI judgment case, but have been denied elevation to the Court of Appeal, are amongst the brightest judges you can find anywhere in the world,' he said.
Perhaps, in a way, the problems in all these countries could have been anticipated. What no-one – not even human rights defenders working on the judiciary – appears to have expected, was the launch of new legal action in South Africa. It criticises the way the JSC handled the most recent crop of interviews, asks for a record of the actual closed-session deliberations, and requests that in the light of its alleged unfair and irrational process, the JSC should be ordered to re-consider the list of candidates whose names are sent to the President.
During the April JSC hearings, interviews with several candidates for positions on SA's apex court had been controversial, seeming unfairly to raise what appeared to be irrelevant or extraneous issues. Sometimes it even appeared that the commissioners from political parties in particular were scoring points off each other via questions asked of the candidates, or were grandstanding by interrogating candidates in a way that would appeal to their political constituents.
As required by the Constitution, the JSC gave President Cyril Ramaphosa a shortlist of names from which to fill the two vacancies, but he has not yet done so. Then, out of the blue late last week, the Council for the Advancement of the Constitution (Casac) launched an urgent application challenging the JSC's nominations of five candidates to fill the two vacancies on the constitutional court.
Analysing the way questions were put to certain candidates in particular – some included and others not included among the five recommended to the President – Casac said commissioners had not behaved properly; instead, they had been engaged in an unfair and irrational process, ambushing candidates, and indulging in 'naked political point settling'. The upshot was that commissioners did not approach their task of choosing candidates 'with an open mind'.
Both by implication and directly, the application criticises the CJ for allowing – and himself indulging in – improper lines of questioning, instead of protecting candidates from the harassment of politicians and maintaining the decorum and dignity of the interviews.
Although unexpected, the application is a timely and useful intervention, highlighting irregularities that the public watching the interviews has, wrongly, come to accept as normal, simply because they happen during many JSC hearings.
The application and the analysis on which it is founded has to be a lesson for the JSC and its chairperson on how proceedings ought to be conducted and what ought not to be tolerated. And it is no mere academic argument: the timing of the application means that the President is likely to delay any announcement of who will fill the vacancies until after the matter is finally settled. Given that two appeals would be possible after the High Court decides the matter, the vacant seats on the Constitutional Court are likely to be warmed by acting appointees for a considerable time.