Judges Matter submits comment on JSC’s criteria for judicial appointment

29 November 2022

With renewed emphasis on legal excellence, integrity and independence, the new criteria are a significant improvement to judicial appointments

This week, civil society organisation Judges Matter submitted comment to the Judicial Service Commission on the revised criteria and guidelines on the appointment of judges.

The JSC’s revised criteria come after several years of advocacy by Judges Matter, and after harsh public criticism with the way the JSC conducts interviews for judges.

Judges Matter researcher Mbekezeli Benjamin, says, “With their focus on legal experience, integrity, and independence these new criteria clearly spell out the important qualities aspirant judges must possess, and how the JSC will assess them in the public interview. This is an exciting improvement and a positive sign that the JSC is finally changing for the better.”

In its 10-page submission Judges Matter has also made several recommendations to strengthen the criteria and ensure a more rigorous yet fair appointment process overall.

These recommendations include that the JSC:

directly apply criteria at all stages of the process, including at shortlisting, at the interviews, and during deliberations.

prioritise the needs of the courts and the judiciary, appointing only exceptional judges from diverse backgrounds who would serve those needs.

include additional questions that scrutinise integrity and financial propriety, including whether a candidate has ever had disciplinary or other court action taken against them.

“These additional recommendations are in line with international best practice but also speak to the practical realities we see at the JSC interviews, which we have been researching and monitoring for well over the last decade,” adds Benjamin.

The revised criteria also include guidelines for the line of questioning that commissioners may follow during interviews. A key feature of the guidelines is an emphasis that questions must relate to the criteria, and a duty on the Chief Justice, as chairperson of the JSC to enforce the guidelines and overrule irrelevant questions. There is also a prohibition on commissioners asking unsubstantiated allegations, which was a key weakness in the process.

“The question guidelines are an important accountability tool and will ensure that commissioners maintain focus on the task of finding good judges for our courts, while protecting the dignity of candidates who come before them,” says Benjamin.

“Nevertheless, we still recommend that the JSC urgently develop a Code of Conduct for commissioners, with a mechanism for errant commissioners to be recalled if they repeatedly disregard the chairperson’s rulings or misbehave in some other way.”

Submissions on the new criteria closed on Monday (28 November 2022), the JSC will now consider these submissions and finalise the criteria document in time for the interview scheduled for April 2023.

Issued by Mbekezeli Benjamin on behalf of Judges Matter, 29 November 2022