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A transparent and merit-based appointment process is critical to judicial independence

[By Prof. Cephas Lumina and Prof. Melvin Mbao]

An independent, impartial, competent and ethical judiciary is a bulwark of a democratic society. It ensures respect for the rule of law, protects human rights, provides checks on other branches of government, and plays a crucial role in guaranteeing an environment conducive to economic and social progress. It is therefore critical that only the most qualified candidates are appointed to the judiciary, especially the superior courts. However, this can only be assured through a selection and appointment process that is transparent to the public and based on the merits of the candidates, rather than on their connection with the government of the day or powerful special interests.

Over the last few years, the reputation of the judiciary in Zambia has taken a battering, with a significant loss of public confidence in its ability to discharge its functions independently, impartially and competently–perhaps the worst since independence. This is largely attributable to the lack of transparency in judicial appointments and the public’s unquestioning acceptance of this harmful situation.

In Zambia, judges of the superior courts (including the Chief Justice) are appointed by the President on the recommendation of the Judicial Service Commission (JSC) established in terms of Article 140 of the Constitution and subject to ratification by the National Assembly. It is unclear how and whether the JSC executes this function, but two key problems have characterised the selection and appointment process. First, the selection has lacked transparency, with vacancies not being advertised, judges being seemingly hand picked and the criteria by which those recommended for appointment remaining unknown. Second, the National Assembly has largely failed to scrutinise judicial appointments and tended to rubber-stamp such appointments. The result has been the appointment of individuals lacking the minimum internationally accepted qualifications for appointment to high judicial office, such as professional competence and experience, integrity, independence, analytical ability, oral and written communication, and ability to render well-reasoned decisions, to mention a few.

The process used to appoint judges is a critical element in promoting the principle of judicial independence. The prospects for an independent judiciary are, in fact, strengthened in circumstances where the judicial selection and appointment processes are open and transparent. As the Southern African Chief Justices Forum (SACJF) has aptly observed, “judicial independence is ensured through the integrity of the selection and appointment process along with the security of tenure of judicial officers.”

Transparent and open processes for selection and appointment also help protect those appointed as judges from undue external influences from other branches of government and special interests. Moreover, it helps ensure that only those candidates who meet the minimum international standards for qualifications, including high professional standing, legal skills and experience, competence and integrity are selected. The judicial selection and appointment process also has a direct bearing on public confidence in the courts and the decisions that they hand down. Thus, the process for the selection and appointment of judges needs to be transparent so that the public can have confidence that those appointed are the best possible candidates from those who have been nominated for, or have expressed interest in, service as judges. Thus, an open, transparent and fair selection and appointment process can enhance public confidence in the administration of justice and strengthen the rule of law. Conversely, judges who are appointed based on vague, political or other inappropriate considerations may not be seen as impartial and independent by the public.

It should be noted that transparency in judicial selection and appointment processes is often reflected in public advertisements of judicial vacancies, the existence of clear and accessible criteria for selection and the conduct of public interviews of candidates. The importance of transparency is underscored by the Lilongwe Principles and Guidelines on the Selection and Appointment of Judicial Officers (“the Lilongwe Principles”) which were adopted by the Southern African Chief Justices Forum (SACJF) in October 2018. The Lilongwe Principles recognise transparency as an overarching principle that is critical for enhancing the integrity of, as well as public confidence in, the judicial selection and appointment process.

The notion of transparency finds expression in several provisions of the Lilongwe Principles, including the requirement that objective criteria for selection be pre-established and publicly advertised; and that candidates be sourced in accordance with a consistent and transparent process. The Lilongwe Principles also emphasize the importance of merit-based appointments and ensuring that judicial appointees exceed the minimum standards of competency, diligence and ethics (Principle IV), and further identify the interviewing of candidates as a best practice for ensuring fairness of the process.

In our estimation, any credible judicial selection and appointment process should produce judicial appointees whose independence, impartiality, competence and integrity are beyond reproach. This is critical for public confidence in the administration of justice and, ultimately, the rule of law.

In this context, we have read, with some dismay, the Press Release by the Law Association of Zambia (LAZ) dated 3 October 2021 in response to the recent letter by Mr John Sangwa, SC, to President Hakainde Hichilema, concerning the appointment of the Chief Justice.

Undoubtedly, Mr Sangwa’s letter has excited much public debate on the issue of judicial appointments in general and the appointment of our next Chief Justice in particular. Nevertheless, in our view, there is nothing in Mr Sangwa’s letter that “disparages the Judiciary” as LAZ claims. In this context, it should be noted, for example, that allegations of corruption in the judicial community in Zambia have the subject of several reports by globally respected anti-corruption organizations. For example, a report on corruption and anti-corruption in Zambia issued jointly by Transparency International and the Chr. Michelsen Institute’s U4 Anti-Corruption Resource Centre in November 2020,noted that the country faced “significant corruption challenges” with public procurement and the justice sector “especially affected.” The report further noted that the judiciary was “influenced by the executive and its reputation (was) marred by allegations of corruption.”

A principled contribution to a debate -which we think Mr Sangwa’s letter is -on a matter of national significance, however uncomfortable it might make some feel, should not be characterised as “disparaging.” To characterise it as such would appear to spark vested interests that a professional body like LAZ should steer away from. It would be regrettable if LAZ’s intervention were perceived as an attempt to stifle public debate on such an important national governance issue. As we noted earlier, it is the unquestioning public acceptance of the absence of transparency in the judicial selection and appointments process that has contributed to the rather unsatisfactory state of the judicial system as well as loss of public confidence in the judiciary.

It appears that LAZ has misunderstood the true import of Mr Sangwa’s letter. What Mr Sangwa is urging is nothing new. It is simply a reminder that the process for the selection and appointment of our next Chief Justice should be consistent with internationally accepted norms for the selection and appointment of judges of superior courts, notably the need to ensure transparency, openness, fairness and merit in the process. We note that LAZ itself recognises the importance of a transparent selection process. We urge it to endorse such a process for the sake of a well-functioning judicial system that enjoys the confidence of the public as well as for the members of LAZ who would benefit from competent judges making well-reasoned decisions, guided by the principles of independence, impartiality, integrity and sound knowledge of the law.

Turning to the role of the JSC in judicial selection and appointment, LAZ states that section 23 of the Service Commissions Act, No. 10 of 2016:
“[P]ermits the JSC to regulate its own procedure. In regulating its procedure, the JSC is at liberty to adopt a more transparent method of scrutiny of candidates before it makes its recommendation to the President.”

This statement implies that the JSC has unconstrained latitude in implementing its mandate with respect to the selection of judicial appointees, which it plainly does not. And, as experience suggests, it would be unwise to leave the JSC to exercise its “discretion” unfettered without reminding it of its constitutional mandate.

Clearly, LAZ has misconstrued section 23 of the Service Commissions Act. In our view, that provision refers to internal operational procedures, such as the scheduling of meetings, quorum and voting at meetings, etc. Conversely, section 41 of the Act, which permits service commissions to “make regulations for the better carrying out of the provisions of this Act,” clearly envisages (when read together with section 3) the establishment, by the JSC, of the necessary procedures for transparent and merit-based judicial selections and appointments through regulations issued in terms of that section.

Even assuming that LAZ is correct in its construction of section 23 (which we believe it is not), the JSC, as a creature of the Constitution and as a state institution, is bound by the supreme Constitution. In fulfilling its mandate, the JSC must be guided by the national values and principles set out in Article 8 of the Constitution, including equity, equality, non-discrimination, good governance and integrity, as well as the values and principles of public service set out in Article 173(1) of the Constitution and sections 3 and 4of the Service Commissions Act. It should be noted that among the core principles of good governance are participation, openness and transparency, ethical conduct, rule of law and accountability.

The values and principles of public service provided for in Article 173(1) of the Constitution include “merit as the basis of appointment and promotion”(our emphasis). These values and principles apply to all state organs and institutions, including the Judiciary, the Legislature and the Executive.

Section 3 of the Service Commissions Act expands on the values and principles of public service as set out in Article 173(1) of the Constitution. It lists, among others, the values and principles of “fair competition and merit as the basis of appointments and promotion” and “affording adequate and equal opportunities for appointment at all levels of the public service”(our emphasis). Section 4 includes among the values and principles for human resource management in the public service,“ qualification, merit, competence, relevant experience and good conduct as the basis of appointment and promotion” and “competitive selection in filling vacancies”(our emphasis).

It is impossible to give effect to the above-mentioned values and principles in circumstances where JSC selection processes remain opaque, judicial vacancies are not advertised, and the selection criteria are unknown. It should also be noted that a key qualification for appointment as judge is that the candidate must be of “proven integrity.” However, a judicial candidate’s integrity cannot be proven in the absence of a transparent and open process that allows various sectors of society to provide their views on the candidate’s suitability.

Transparency and openness are key to ensuring the integrity of the judicial selection and appointment process, and critical to identifying the most qualified candidates to discharge judicial functions, in relation to which the position of Chief Justice has special significance. In particular, judicial vacancies must be advertised and all eligible citizens invited to apply or submit expressions of interest; the selection of judges must be guided by clear and previously set criteria (beyond the formal criteria set out in the Constitution and inclusive of the Lilongwe Principles); the JSC should establish selection panels to evaluate the candidates; the JSC must afford relevant professional bodies and other sectors of society opportunities to provide opinions on the suitability of candidates (which should be investigated), and the JSC must hold public hearings (interviews) to assess the qualifications of the candidates. Finally, the JSC must explain the basis for its decision to select or recommend certain candidates. In this context, we wonder why the JSC has not issued regulations to provide for all these critical procedural elements of transparency. As we have noted above, section 41 of the Service Commissions Act provides the clear legal basis for the JSC to do so.

For its part, the National Assembly should -mindful that its authority derives from the people and must be exercised in a manner that protects the Constitution and promotes good governance (Constitution, Article 61)-scrutinise all candidates nominated for judicial appointment and, preferably, invite those candidates the JSC has recommended for appointment to a public hearing by the relevant parliamentary committee, and not merely rubber-stamp Presidential nominations.

Finally, as part of the much needed constitutional and legal reforms, there is need to overhaul the JSC and to consider constitutionally entrenching the criteria for judicial selection and appointment –and indeed for any high public office. Consideration should also be given to establishing a mechanism for vetting all serving judges and other judicial officials to ensure that only those who meet the minimum international standards for appointment are allowed to continue to serve. As Australian law professor Ben Saul stated in a recent opinion in the Sydney Morning Herald, “public jobs, funded by taxpayers, should be appointed on merit in a fair manner.”

Prof. Cephas Lumina is formerly a Full Research Professor of Constitutional and International Human Rights Law at the University of Fort Hareandan Extra-Ordinary Professor of Human Rights Law at the University of Pretoria, South Africa. He is currently a Legal Advisor in the Office of the United Nations High Commissioner for Human Rights. He writes in his personal capacity.

Prof. Melvin Mbao is an Emeritus Professor of Public Law and Legal Philosophy and, lately, Executive Dean of the Faculty of Law, North West University, South Africa. He writes in his personal capacity.

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