A critical analysis of political Influence on the judicial appointments process in South Africa
In the democratic era in South Africa, the judiciary is an independent branch of government vested with the administration of justice function. It must perform this function through judicial officers who are impartial and without interference from other persons, including state organs. This study is founded on the view that the current process of appointing judicial officers is politically manipulated and dominated by politicians drawn from the executive and the legislative branches. This political influence jeopardises the independence of the judiciary. A historical synopsis shows that political influence was always present in judicial appointments since the executive dominated such process. In the democratic era, there was an attempt to move away from politically dominated judicial appointments processes, through the adoption of the Constitution of the Republic of South Africa, 1996 (Constitution). However, this did not materialise because the process in Section 174 involves the President, while section 175 involves the Minister of Justice, who are politicians and the Judicial Service Commission (JSC), an institution that is politically dominated in terms of its composition in section 178. The JSC is central to the judicial appointments process because it assesses the suitability of aspirant judicial officers and ultimately selects, nominates or recommends them to the President for judicial appointment. The politicians from the governing party, selected from Parliament as well as the commissioners, who see their appointment through the President render the JSC as politically dominated. Those commissioners are perceived as political appointees since a politician, being the President, appoints them. The President appoints judicial officers and acting judges. The Minister of Justice also has the power to appoint the latter. The roles of these two politicians and of those in the JSC establishes political influence on the judicial appointments process which jeopardises the independence of the judiciary. This is because they interfere with the functioning of the courts and judicial officers who see their appointment through this process may not be impartial, when they adjudicate legal disputes where these or other politicians are involved. The independence of the judiciary is at the heart of the rule of law, because "without an independent judiciary there can be no rule of law." Section 165 of the Constitution guarantees the independence of the judiciary. However, the latter is still jeopardised by the judicial appointments process that is susceptible to political pressures. Since most countries employ different judicial appointments processes, not all are politically manipulated since politicians play a minimum role within such process. Thus, they strive to protect the independence of the judiciary. This study examined Canada and Namibia, to draw lessons that South Africa could learn from the judicial appointments in these two countries that are not politically dominated. In conclusion, the study proposes recommendations through the judicial appointments process in Canada and Namibia, to ameliorate the current process in South Africa.
- Law