Judges Matter: the process is broken, so let’s fix it

Members of the coalition say the current selection process is “broken” and judicial selection should be more transparent.

They want a reform of the Judicial Service Commission (JSC), to allow for greater civic participation that will lead to a more representative bench.

The JSC is the body tasked with choosing South Africa’s judges. It begins by announcing judicial vacancies and accepting nominations. It then sifts through nominees and announces a shortlist of candidates, allowing the public to offer comments on these candidates. Next, the JSC conducts public interviews. Final decisions are made in private and recommendations are sent to the president, who appoints the new judges.

The actual criteria used for selection of judges are different from the official criteria, say members of the coalition. For instance, there is no formal requirement that candidates have been acting judges, but in practice their chances of being appointed are much lower if they have not.

“It seems to be a pretty important requirement for the JSC, even though it is not technically a requirement to become a judge,” says Sanja Bornman of the Women’s Legal Centre. She believes such informal requirements should be formalised in the interests of transparency.

A further problem is that it is very difficult for women to get positions as acting judges, she says.

“Because the legal fraternity is still very patriarchal—it’s very much an old boys’ club—it’s very difficult for women advocates to get acting positions. The process doesn’t provide for making sure that women are able to act,” she says. Tabeth Masengu of the DGRU agrees, saying, “If acting experience is crucial for appointment, how about making sure more than 50% acting appointments go to women?”

Alison Tilley, coordinator of the coalition, notes the need to give more magistrates and attorneys opportunities to work as acting judges, “because that’s where the diversity is.”

Another issue the coalition identifies in the JSC process is that vacancy announcements are not widely circulated. Only insiders tend to hear about them, Tilley says, so the coalition wants to make more people insiders.

Moreover, candidates are treated very differently in the public interviews, according to Vanja Karth of the DGRU. Some are questioned for much longer time periods than others. Bornman says women candidates are often asked more gender-related questions than their male counterparts.

Greater involvement from civil society is crucial in reforming the process, according to Tilley.

“What we really need at this point is the opportunity to comment on judgments that nominees have written,” Tilley says. This opportunity is technically available, but constrained by a short timeframe and a limited number of judgments. Currently the period for comments is about three or four weeks, Tilley says, but an ideal period would be at least six.

And since candidates’ full judicial histories are not available—only the ten or so judgments they choose to submit—civil society organisations are left “scrambling from scratch” as they try to evaluate candidates when the shortlist is announced and before interviews are conducted. The coalition wants to see candidates’ full judicial histories made available so that civil society can make more substantive and informed comments, as it cannot be expected that the JSC itself wade through a candidate’s entire judicial history.

Beyond civil society and the JSC, citizens should know a great deal more about the candidates, in Tilley’s view. She wants engagement in the judicial appointment process not just by lawyers and legal academics, but also by people whose everyday lives are affected by judges. According to Masengu, that’s everyone.

“People can nominate, people can support, people can provide comments, even attend the JSC interviews,” Masengu says. “We’d like to bring the process close to home—to make it a process that is not so far away, only for intellectuals in ivory towers, but for ordinary people.”

Not many countries have such an open process for choosing judges, and it’s a privilege South Africans should take advantage of, Masengu says.

Bornman wants to see the same level of public interest that accompanies elections. “People get up in arms about elections. They’re excited, they’re vocal,” she says. “But when it comes to choosing judges, your average person on the street doesn’t really know what that entails. It’s because the process has always been such that it doesn’t allow for people to care.” The coalition will raise awareness of how the public can engage with the judicial selection process.

The coalition’s advocacy initiatives will be complemented by engagement with court officials. Members plan to meet the Office of the Chief Justice of South Africa and the Minister of Justice and Correctional Services to discuss suggestions for improving the appointment process. They have been meeting key JSC members to talk about proposed changes. Tilley says that Judge Lex Mpati, President of the Supreme Court of Appeal, said the Judges Matter project could only enhance the judiciary’s credibility. “We’ve certainly had no pushback so far,” she says.

The DGRU, which serves as the coalition’s secretariat, plans to build an accessible repository of information from civil society about nominees. This would include past judgments, feedback from court supporters, DGRU research on acting judges, and complaints about the judges and magistrates. “The idea is that we feed our research to civil society organisations who then use it to advocate for change,” Karth says.

The timing of the coalition’s formation comes as a new batch of JSC members was selected by Parliament on 24 June. Masengu says this is “a good opportunity for the process to become more user-friendly” and hopes the coalition will have impacted changes by the October meeting of the JSC.

This is the second article of two on this subject. The first was published yesterday and is available here.