48 | Zimbabwe Rule of Law Journal
Commenting on the composition of the South African JSC, Magaisa stated that it is a system that says
democracy is about majority rule, but it also considers the interests of the minority and recognizes the
importance of skills and expertise.49 This is a sober assessment of the position in South Africa, but
it does not make the system attractive in any way since it is heavily composed of political players. It
defeats the whole purpose of judicial independence and it inevitably raises the risk of political-party
based deliberations and decision making.
2.4 Appointment of judges generally
Appointment of judicial officers has a great bearing on judicial independence. Theoretically, there
are several threats to judicial independence that may be brought about by judicial appointments.
Executive controlled judicial appointments processes mostly result in “court packing”. The International
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa recommend that an
independent body should be entrusted with selection of judicial officers.50 There are a wide variety of
judicial appointment mechanisms world-wide that reflect different levels of adherence to the concept
of judicial independence.51 In the USA, for example, the President appoints judges whom are then
subjected to interrogation by the Senate. During apartheid in South Africa, the courts were packed
with political appointees and prosecutors and judges had to follow the direction of the incumbent
leaders and deal with enemies of the apartheid regime.52
As stated already, the Latimer House Guidelines makes it clear that constitutional systems should
have an appropriate independent process in place for judicial appointments which should be made
by a JSC and based on merit,53 while judicial positions are also advertised.54 What this boils down to
49
A. Magaisa “Does the public have a role in Zimbabwe’s new Judicial appointment process?” (July 2014) http://alexmagaisa.
com/does/-the-public-have-a-role-in-zimbabwes-new-judicial-appointments-process/, accessed 30 October 2015
50
L.Chiduza op cit note 26 at 376
51
Ginsburg and Garoupa “The Comparative Law and Economics of Judicial Councils” 2008, Berkeley Journal of International
Law Vol 27.1.53 quoted by Manyatera and Fombad op cit note 6 at 2
52
J. B Diescho op cit note 1 at 35
53
Principle II of Annex of the Commonwealth (Latimer House) Principles on the Three Branches of Government (2003) and
see also Principle 12.3 of the Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct (2010)
54
Latimer House Guidelines, 1998
Select target paragraph3
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