Pachipamwe. I hope this finds you well. Thanks to those who have written to me. I appreciate your comments and will endeavour to address issues raised as we go along. 

Last week, in my first letter, I raised the issue of limiting the incidence of risk attendant upon the human agents of the state. I referred to this type of hazard as ‘human risk’ and argued that it is correlated to the process of appointing the human agents to posts in state structures.

I looked at a few examples, including judicial office and the office of the Attorney-General and concluded that by and large, human risk in the operation of these and similar offices was inordinately high. This, I pointed out, was largely because appointment powers were concentrated in the hands of one person, namely the President. I argued that the appointment process must be qualified by effective checks and balances on the use of presidential power. I indicated that I would suggest alternatives and it is the purpose of this letter to do so.

Before I proceed, however, let me respond briefly to a point raised by a correspondent. He said that even in so-called model democracies, appointments to these offices are political and that it was necessary for purposes of accountability to allow the president to have those powers.

To some extent, he has a valid point – particularly on the accountability issue. The president is elected directly by the people and takes responsibility for his government’s performance and must correspondingly be given powers to execute that mandate. That is true. However, it is also true that such powers cannot be unfettered otherwise we risk creating a dictatorship. That is why modern constitutions contain checks and balances. I must therefore, clarify that I am by no means proposing that the president should have no role in the appointment process. Rather, I am simply suggesting that there must be effective checks and balances to prevent abuse or misuse of presidential power. That is part of the mechanisms for reducing the human risk.

On account of space limitations, it is not possible for me to look at each constitutional or statutory office in which the president or his ministers have a role in appointing human agents. I have taken the liberty to focus specifically on judicial office in the hope that similar reasoning could apply to other offices.

I said last week that the problem with judicial appointments under the present system is that they are effectively in the hands of the President. The only check on his powers of appoint is that he is required to consult with the Judicial Service Commission (JSC) but I argued that this was a weak check because he is not compelled to follow the advice of the JSC and secondly, the JSC consists of members who themselves are presidential appointees. Even the other check, that he must inform the Senate where his view conflicts with that of the JSC, is similarly weak because there is nothing that the Senate can do if so informed.
 
Looking South

Fellow citizen, many of our brothers and sisters have crossed the treacherous waters of the Limpopo in search of pastures new. I too, have taken the liberty to cross the same waters and look to South Africa in this instance not because its system is perfect but I believe it contains useful tools in designing checks and balances in judicial appointments.

Under the SA constitution, the President is responsible for the appointment of judges but before doing so, specifically in the case of senior appointments, he is obliged to consult with the Judicial Service Commission. Now, fellow citizen, this might seem to be fairly similar to our own system and you might be wondering why I have criticised it. However, there are some critical differences which go some way to make the check on presidential power in SA more effective than ours (although no doubt, South Africans might be looking to improve their own system given recent experiences in judicial appointments which would only show how far behind we are at present).

The first difference is that the SA JSC has a direct, more prominent and visible role in the judicial appointment process. It conducts the public interviews in a selection process that is designed to be fairly rigorous and transparent. The President not only consults the SA JSC but also the leaders of political parties represented in parliament – itself an inclusive process. Appointments of Constitutional Court (CC) judges are from a list of nominees prepared by the SA JSC. The president is required to give reasons where he disagrees with the nominations of the SA JSC and it will add new nominees to the list.

Further, it is important to note that the executive discretion available to the President in these CC appointments is removed in the case of other judicial appointments to the Supreme Court and the High Court. These are made on the advice of the SA JSC which essentially means that President appoints persons that have been selected by the SA JSC.

What emerges from this outline is that although the President has executive discretion in the very senior judicial appointments, the SA JSC is the key player in judicial appointments. The role of the SA JSC has the effect of diluting Presidential power and therefore his overall influence in the judiciary.

I suspect however, fellow citizen, that you still have a question concerning the independence of the SA JSC itself. You will recall that one of my criticisms of the JSC in Zimbabwe is that it comprises of virtually all presidential appointees. The SA JSC is quite different in this respect.

The SA JSC is more diverse in its composition. It is chaired by the Chief Justice, includes at least three judges, lawyers from the Bar, attorney and the academic professions. It also includes the Minister of Justice, parliamentarians and persons designated by the President after consultation with leaders of all parties represented in parliament. When selecting judges of a specific High Court – i.e. in a province, the SA JSC includes the Premier of that province.

Whilst the heavy presence of politicians has been criticised, it is clear that in setting up this body, there was an attempt to at least make it diverse and broad-based. Notice how, for example, there is inclusivity even of opposition political parties and professionals in the appointment process. It is a system that says, democracy is about majority rule yes, but it also considers the interests of the minority and recognises the importance of skill and expertise.

The selection process is also something from which lessons can be drawn. For a start it is a process that is performed largely in public. Vacancies are publicly announced and nominations are called for. The interviews are open to the public and the media. The recommendations, which are made by consensus or majority vote are supported by reasons and submitted to the President. The recommended names are also announced to the public.

We see here that the designers of the SA Constitution had in mind the idea of promoting transparency and broad representation in judicial appointments. This is not to suggest that the process has been smooth-sailing in that country. There have been challenges with a number of criticisms of the SA JSC’s recommendations. However, we have to understand the context.

The problem is that the judicial appointment process in South Africa is subject to two competing interests emanating from on the one hand the forces of continuity and on the other hand, the forces of change. As you know, fellow citizen, our southern neighbour was under Apartheid for many years and during that time, white males who enjoyed many privileges compared to their black and female (both black and white) dominated the judiciary. With the advent of freedom in 1994 and a new constitutional dispensation, one of the priorities was to transform the judiciary in order to make it more representative of the demographics of the country taking into account issues like race and gender (section 174(2) of the SA Constitution). Also the pool from which judges are drawn has been widened from the while-male dominated Bar to include attorneys and academics.

The desire to achieve the goal of transformation has not been without problems – there is a view that white males are being unfairly discriminated against by the SA JSC and that merit and quality have given way to affirmative action. I was in South Africa during April this year when there was serious controversy over the rejection by the SA JSC of a top Advocate who had applied for judicial appointment in the Cape High Court. On the other hand, those for transformation believe that the pace of change has been slow. Doubtless, trying to balance continuity and therefore, retain skills and experience for the efficient administration of justice and transformation in order to make the judiciary more representative has been a challenging exercise for our neighbour. But at least they are doing something that our Lancaster House Constitution failed to do.

What we see from South Africa is by no means perfect. In the US, Supreme Court judges are appointed by the President but not before rigorous scrutiny conducted by Senate. In both countries their appointment processes are informed by the political dynamics of those countries, taking into account their histories. I am not suggesting that we copy carte blanche what they do in other countries.

I only urge that in creating a new appointments framework, for the judiciary and indeed for other key constitutional offices, we endeavour to achieve transparency and broad representation and consultation. Let there be effective checks and balances. It doesn’t mean the President will not make his choices – it simply means that in doing so he will always be cognisant of the fact that there are other eyes watching and the presence of that oversight alone is an important deterrent to making political appointments devoid of merit. That should be a start.

That is all for today, fellow citizen. I hope you will have picked a few ideas from these two letters on the matter of appointments and how this is an important factor in reducing human risk. Till next time …