Global Judicial Integrity Network Updates Special Edition 'Views' Review | Page 29
VIEWS
The Importance of Transparency in Judicial Selections and Appointments
Chris Oxtoby is a lawyer and senior researcher at the Democratic Governance and Rights Unit at the
University of Cape Town in South Africa. Justice Alfred Mavedzenge is also a judicial researcher at the
Democratic Governance and Rights Unit at the University of Cape Town.
In October 2018, the
Southern African Chief
Justices’ Forum (SACJF)
formally
adopted
the
Lilongwe Principles and
Guidelines on the Selection
and Appointment of Judicial
Officers.
The
Lilongwe
Principles and Guidelines,
which have previously been
discussed in a ‘Views’ piece
by Justice Sanji Monageng,
are significant, as they are
the first such guidelines
to be developed in Africa,
by an African institution,
in response to specific
circumstances that pertain
to Africa. Thus, the adoption
of the Lilongwe Principles and Guidelines is
an embodiment of the spirit of finding African
solutions to Africa’s governance challenges.
The document comprises 15 best practice
principles for the selection and appointment of
judicial officers, which are underscored by best
practice guidelines. The Lilongwe Principles
and Guidelines cover the full range of the
selection and appointment process, from the
initial identification of candidates to the formal
act of the final appointment.
The importance of transparency is paramount,
and it is identified in the Lilongwe Principles
and Guidelines as an overarching principle that
should “permeate every stage” of the selection
and appointment process. As indicated in the
explanatory text, transparency is a cross-
cutting principle that is necessary for enhancing
the integrity of, as well as public confidence in,
the process. 1
The adoption of the Lilongwe
Principles and Guidelines is an
embodiment of the spirit of finding
African solutions to Africa’s
governance challenges.
Participants in the research that underpins the
Lilongwe Principles and Guidelines repeatedly
identified transparency as being crucial to
ensuring public confidence in the judicial
selection and appointment process, and thus
ultimately to the legitimacy of that process.
In several jurisdictions, concerns were raised
about vacancies not being advertised, and a lack
of information about who shortlists candidates
and by what criteria. Based upon this input,
transparency finds specific application in
several provisions: principle vii, which requires
that objective criteria for selection be pre-set
and publicly advertised and principle ix, which
provides that candidates be sourced according
to a consistent and transparent process. A
lack of transparency in these parts of the
process leaves it vulnerable to perceptions
of manipulation, improper reasons for the
selection of unqualified candidates and similar
shortcomings.
One particular aspect of the selection process
that is often contentious is the criteria by
which judicial officers are chosen. Contestation
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