Assessment of judicial appointment commissions

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JUDICIAL INDEPENDENCE IN PERSPECTIVE

Introduction

An independent judiciary is a sine qua non of a democratic state.83 Indeed, the independence of the judiciary has grown to be seen as a fundamental element of constitutionalism84 in modern day liberal democracies.85 Constitutional law theories often highlight the importance of an independent judiciary as a key element of the separation of powers and the rule of law paradigms. However, there is ‘little agreement on just what this condition of judicial independence is or what kind or how much judicial independence is required’.86 The exact meaning of the concept of judicial independence87 has evoked a lot of debate in constitutional law discourse.88 While acknowledging the divergent views on the meaning of judicial independence, an independent judiciary can be defined as one that ensures that judges adjudicate matters in a fair and impartial manner uninfluenced by external factors. It necessarily follows that judges must be insulated from all external factors not relevant to the case, and must perform their adjudicative functions free from ‘considerations relating to their own self-interest or the interest of the body that appointed them.’89 It is hardly surprising that judicial independence as a concept has taken centre stage in public policy discussions around the world.90 This is due partly to the powers of the courts to strike down legislation on the grounds of unconstitutionality which has led to what is commonly referred to as the ‘countermajoritarian dilemma.’91 An independent judiciary entails two things.92 First, there must be in existence the institutional independence of the judiciary from the other branches of government. Second, the decisional independence of the members of the judiciary. The decisional independence of the judges has two basic elements,93 that is, substantive independence and personal independence.94 An independent judiciary remains one of the three pillars of limited government which complements the principles of separation of powers and the rule of law.95 The rule of law as a constitutional concept can only have meaning in a polity which has a judiciary whose members are insulated from internal and external influences or pressures. Due to the importance of an independent judiciary in modern day governance systems, several regional and international instruments trumpet the basic standards expected of an independent judiciary. However, none of these instruments define an independent judiciary but merely outline the elements constitutive of it.96 The same indeterminacy is reflected on the African constitutional law terrain. Article 2697 of the African Charter provides for an independent judiciary but falls short in giving a definition.98 It is hardly surprising that a definition was omitted considering the daunting task of prescribing a universal definition at the regional level taking into account the divergent approaches to judicial independence in Africa.99 Similarly, the constitutions of most African countries including those of Mozambique, South Africa and Zimbabwe proclaim the independent role of the judiciary.100 It is however apparent that judicial independence is conceived differently and these differences emanate from a variety of sources including the underpinning historical contexts and political cultures in each jurisdiction.

TABLE OF CONTENTS :

• DECLARATIONS
• ACKNOWLEDGEMENTS
• DEDICATION
• ABSTRACT
• LIST OF ABBREVIATIONS
• TABLE OF CONTENTS
• CHAPTER I: INTRODUCTION
  • 1.1 Background to the study
  • 1.2 Problem statement
  • 1.3 Research question
  • 1.4 Significance of study
  • 1.5 Methodology
  • 1.6 Limitations
  • 1.7 Chapter overview
• CHAPTER II: JUDICIAL INDEPENDENCE IN PERSPECTIVE
  • 2.1 Introduction
  • 2.2 Theoretical justifications for judicial independence
  • 2.3 Assessing judicial independence
  • 2.4 Analysis of the different elements of judicial independence
    • 2.4.1 Institutional independence
    • 2.4.2 Security of tenure
    • 2.4.2.1 Security of judicial office
    • 2.4.2.2 Removal from office
    • 2.4.2.3 Due process of removal and discipline
    • 2.4.3 Judicial selection
    • 2.4.4 Financial independence
    • 2.4.5 Judicial accountability
  • 2.5 Overview of the leading judicial selection systems
    • 2.5.1 The American system
    • 2.5.2 The English system
    • 2.5.3 The French system
  • 2.6 Other judicial selection systems
  • 2.7 Conclusion
• CHAPTER III: HISTORICAL BACKGROUND OF THE LEGAL SYSTEMS IN MOZAMBIQUE, SOUTH AFRICA AND ZIMBABWE, AND ITS IMPACT ON THE SYSTEM OF JUDICIAL SELECTION
  • 3.1 Introduction
  • 3.2 General background of Mozambique, and evolution of its legal system in the context of judicial selection mechanisms
    • 3.2.1 General background: Mozambique
    • 3.2.2 Evolution of the Mozambican legal system with emphasis on judicial selection mechanisms
  • 3.3 General background of South Africa, and evolution of its legal system in the context of judicial selection mechanisms
    • 3.3.1 General background: South Africa
    • 3.3.2 Evolution of the South African legal system with emphasis on judicial selection mechanisms
  • 3.4 General background of Zimbabwe, and evolution of its legal system in the context of judicial selection mechanisms
  • 3.4.1 General background: Zimbabwe
  • 3.4.2 Evolution of the Zimbabwean legal system with emphasis on judicial selection mechanisms
  • 3.5 Evaluation of political, economic and legal contexts
  • 3.6 Conclusion
• CHAPTER IV: AN EXAMINATION OF JUDICIAL SELECTION MECHANISMS IN MOZAMBIQUE, SOUTH AFRICA AND ZIMBABWE: GENERAL CONSIDERATIONS
  • 4.1 Introduction
  • 4.2 Constitutional and legislative frameworks governing judicial selection
  • 4.3 Assessment of judicial appointment commissions
    • 4.3.1 Status of judicial appointment commissions
  • 4.3.2 Composition and appointment of members
    • 4.3.2.i Mozambique
    • 4.3.2.ii South Africa
    • 4.3.2.iii Zimbabwe
    • 4.3.2.iv Points of convergence and departure with global practice
    • 4.3.3 Judicial appointment commission procedures
    • 4.3.3.i Mozambique
    • 4.3.3.ii South Africa
    • 4.3.3.iii Zimbabwe
    • 4.3.3.iv Revelations arising out of the comparison
  • 4.4 Conclusion
• CHAPTER V: AN ASSESSMENT OF JUDICIAL SELECTION CRITERIA IN THE SUPERIOR COURTS OF MOZAMBIQUE, SOUTH AFRICA AND ZIMBABWE
  • 5.1 Introduction
  • 5.2 Assessment of judicial selection criteria: ordinary superior courts
    • 5.2.1 The position in Mozambique
    • 5.2.2 The position in South Africa
    • 5.2.3 The position in Zimbabwe
    • 5.3 Assessment of judicial selection criteria: specialized superior courts
    • 5.3.1 The position in Mozambique
    • 5.3.2 The position in South Africa
    • 5.3.3 The position in Zimbabwe
  • 5.4 Acting judicial appointments
  • 5.5 An assessment of emerging trends in judicial selection criteria in all three countries
  • 5.6 Conclusion
• CHAPTER VI: CASE STUDIES: SUPREME COURT JUDICIAL APPOINTMENTS
  • 6.1 Introduction
  • 6.2 Case study 1- Mozambique
  • 6.3 Case study 2- South Africa
  • 6.4 Case study 3- Zimbabwe
  • 6.5 Comparative analysis of the case studies
  • 6.6 An assessment of developments in all three countries in light of emerging global trends
  • 6.7 Conclusion
• CHAPTER VII: SUMMARY, RECOMMENDATIONS AND CONCLUSIONS
  • 7.1 Summary
  • 7.2 Recommendations
  • 7.3 Final conclusions
  • BIBLIOGRAPHY
  • ANNEXURE I: QUESTIONNAIRE

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