As Judges Matter has previously written, the Constitution mandates the president with initiating the process of appointing the chief justice. We believe President Cyril Ramaphosa should break from the past and initiate a transparent, competitive and consultative process that will ensure that only the best judge is selected as chief justice, in whom all South Africans will have confidence.
The law and past practice for appointing the chief justice
Section 174(3) of the Constitution provides that the president, acting as head of the national executive, appoints the chief justice after consulting the Judicial Service Commission (JSC) and the leaders of parties represented in the National Assembly. This provision gives the president a very large degree of discretion in appointing the chief justice. This practice is consistent with the approach in other countries in southern Africa, where the appointment of the chief justice is largely a matter of presidential discretion.
Recent practice in South Africa, as evidenced in the appointment of chief justices Pius Langa, Sandile Ngcobo and Mogoeng Mogoeng, has been for the president to announce his chosen candidate and for the required consultation with the JSC and political parties to take place, after which the president makes the formal appointment. But in practice, it is often a foregone conclusion that whoever the president picks will inevitably be the chief justice.
While there is nothing wrong with this approach, it is not the only approach that has been followed. In 1996, the Presidency and the JSC appointed a four-person committee to oversee the selection process. Based on the committee’s recommendations, the JSC called for nominations from President Mandela, the then Appellate Division (now the Supreme Court of Appeal), the judges president, and legal organisations including the General Council of the Bar. This resulted in Justices Ismail Mahomed and Hendrik van Heerden being nominated and interviewed by the JSC. Justice Mahomed was ultimately appointed as chief justice.
There are other countries in Africa that allow for multiple candidates to be considered for the position of chief justice. In the recently completed process in Kenya, 13 candidates applied and after all were interviewed, Chief Justice Martha Koome became the first woman chief justice of Kenya.
We believe that there is merit in a process that allows for multiple candidates to be considered. It would add credibility and legitimacy to the process and would serve as a counter to any suggestions that the president was using the power of appointment in an inappropriate way.
Allowing for multiple candidates to be considered would not be an impediment to the president exercising his discretion in appointing the chief justice, but it would allow for other options to be considered, and therefore more information to be considered by the president before making the appointment.
If those multiple candidates go through the consultation process set out in the Constitution, including being publicly interviewed by the JSC, the president’s ultimate decision can only be strengthened as it will be informed by more information being made available.
Ramaphosa should follow a novel process for selecting the chief justice
When President Ramaphosa appointed the present National Director of Public Prosecutions, he set up an advisory panel to identify, interview and recommend prospective candidates. He followed a similar process when he appointed Edward Kieswetter to head SARS. We find the idea of an equivalent expert panel to advise the president on the chief justice an attractive one.
This panel could include figures such as former Constitutional Court judges, the heads of Chapter 9 institutions and other eminent South Africans. It could play a similar role to the 1996 committee involved in President Mandela’s appointment of Chief Justice Mahomed and would be similar to a group of elders bringing their wisdom and expertise to bear in helping the president identify the best possible candidate for such an important position.
Rather than have the advisory panel duplicate the role of the JSC by interviewing the candidates, a preferable approach would be for the panel to put out a call for nominations or suggestions of potential candidates. The panel would then consider these suggestions, examine the track record of the suggested candidates and recommend a shortlist of three potential candidates to the president.
The president would then consult, as required by the Constitution, on this shortlist. Leaders of political parties would have the opportunity to give their input. The JSC would interview all three shortlisted candidates
It has also been suggested that there must be a right for the political parties consulted in terms of the Constitution to suggest alternative candidates. We would propose that political parties, with other stakeholders, particularly in the organised legal profession, be specifically invited to suggest candidates to the advisory committee so that such candidates can be considered at the outset of the process.
Time is running out: The president must act now
With fewer than 50 days remaining, this might be a tight process to pull together. But we have no doubt that if it is carried through, it would give enormous credit to the significance of the moment and the dignity of the constitutional roles of both the president and the chief justice. DM
Judges Matter is the leading civil society transparency project dedicated to monitoring the appointment of judges and the governance and disciplinary processes of the judiciary in South Africa.
"Charms strike the sight but merit wins the soul." ~ Alexander Pope
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