The Importance of Transparency in Judicial Selections and Appointments

By Chris Oxtoby and Justice Alfred Mavedzenge, University of Cape Town

Chris Oxtoby is a lawyer and senior researcher at the Democratic Governance and Rights Unit at the University of Cape Town in South Africa. Justice Alfred Mavedzenge is also a judicial researcher at the Democratic Governance and Rights Unit at the University of Cape Town. Mr. Oxtoby and Mr. Mavedzenge recently shared their views on judicial selections and appointments with UNODC, as part of the Organization's on-going work to promote the Lilongwe Principles and Guidelines. All opinions expressed in this piece are solely those of the authors as external experts and do not necessarily reflect the official position of UNODC.

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In October 2018, the Southern African Chief Justices' Forum (SACJF) formally adopted the Lilongwe Principles and Guidelines on the Selection and Appointment of Judicial Officers. The Lilongwe Principles and Guidelines, which have previously been discussed in a 'Views' piece by Justice Sanji Monageng, are significant, as they are the first such guidelines to be developed in Africa, by an African institution, in response to specific circumstances that pertain to Africa. Thus, the adoption of the Lilongwe Principles and Guidelines is an embodiment of the spirit of finding African solutions to Africa's governance challenges.

The document comprises 15 best practice principles for the selection and appointment of judicial officers, which are underscored by best practice guidelines. The Lilongwe Principles and Guidelines cover the full range of the selection and appointment process, from the initial identification of candidates to the formal act of the final appointment.

The importance of transparency is paramount, and it is identified in the Lilongwe Principles and Guidelines as an overarching principle that should "permeate every stage" of the selection and appointment process. As indicated in the explanatory text, transparency is a cross-cutting principle that is necessary for enhancing the integrity of, as well as public confidence in, the process. ¹

Participants in the research that underpins the Lilongwe Principles and Guidelines repeatedly identified transparency as being crucial to ensuring public confidence in the judicial selection and appointment process, and thus ultimately to the legitimacy of that process. In several jurisdictions, concerns were raised about vacancies not being advertised, and a lack of information about who shortlists candidates and by what criteria. Based upon this input, transparency finds specific application in several provisions: principle vii, which requires that objective criteria for selection be pre-set and publicly advertised; and principle ix, which provides that candidates be sourced according to a consistent and transparent process. A lack of transparency in these parts of the process leaves it vulnerable to perceptions of manipulation, improper reasons for the selection of unqualified candidates and similar shortcomings.

One particular aspect of the selection process that is often contentious is the criteria by which judicial officers are chosen. Contestation may arise, for example, if attempts are made to alter the demographic composition of the judiciary. This may require the application of criteria that seem to be at odds with traditional conceptions of selection criteria. The criteria applied may also be a cause for contestation when political factors impact the appointment process. During our prior research, several concerns were articulated about the vagueness of the criteria applied in many jurisdictions. In general, a lack of clear, transparent criteria increases the danger of appointments being made for inappropriate reasons.

The Lilongwe Principles and Guidelines consider several facets of this issue and adherence to these provisions will help to ensure that these standards are met. Judicial appointees should exceed the minimum standards of competency, diligence and ethics (principle iv), and appointments should be made according to merit (principle v). The minimum criteria that should be met for appointment as a judicial officer include holding a recognized law degree, having an appropriate level of post-qualification experience, possessing good written and communication skills, having the ability to diligently render a reasoned decision and severing any political affiliations after appointment (guidelines to principle vii). In addition to these characteristics, the Lilongwe Principles and Guidelines allow for appropriate grounds of diversity to be actively prioritized to ensure that the judiciary is reflective of society in all respects (guidelines to principle viii).

Principle xii and its guidelines identifies the interviewing of candidates as the best practice for the evaluation stage to ensure the fairness of the process. Although transparency is woven throughout the Lilongwe Principles and Guidelines, they do not take a firm position on whether or not interviews should take place in public, in order to accommodate divergent views from among the SACJF's member countries.

Whilst holding interviews in public clearly promotes a high degree of transparency, there are concerns that the nature of the judicial office is not suitable for public interviews, and that the prospect of being interviewed in public could deter possible candidates. In a potential compromise, the guidelines to principle xii suggest that the interviewing authority should provide candidates the option to answer personal questions in private or public, in cases where interviews would otherwise be public.

The regional significance of the document, as set out at the beginning of this article, makes it all the more important that its provisions are implemented and applied in the ongoing development and practice of judicial appointment processes around Africa. The research undertaken in support of the development of the Lilongwe Principles and Guidelines revealed a keen desire among a wide range of stakeholders for improvements and reform in the selection and appointment process in a wide range of jurisdictions. It is to be hoped that the Lilongwe Principles and Guidelines will play a key role in these developments, and thereby contribute to strengthening the independence and integrity of judiciaries in Africa.