Published online by Cambridge University Press: 20 September 2022
Political scientists analyze the global rise of judicial appointment commissions as a response to judicialized politics. They argue that appointment processes have formalized to include more constituencies now affected by judicial decisions. This article presents evidence from Southern Africa confounding their expectations. In this region, formalization has social as well as political origins. Over the last two decades, the senior judiciary has suddenly become subject to the same demands for organizational accountability and descriptive representation that sociologists of other professions have been documenting for decades. Throughout the region, therefore, it has become increasingly difficult to defend opaque practices inherited from British (and South African) colonialism. Twenty years ago, Namibia, Botswana, Lesotho, and Swaziland/Eswatini all recruited most appellate judges from abroad through informal channels. In every country, this system has come under pressure from a variety of local sources. Yet those demanding reform have always been able to mobilize new international orthodoxies that require the judiciary to represent its society and make itself accountable to profane, external audiences. These new orthodoxies have acquired an unusual power in Southern Africa thanks to their embodiment in South Africa’s own post-apartheid transition, and long-standing moral imperatives to “localize” senior expatriate positions in postcolonial states.
Much earlier versions of this manuscript benefited from feedback received at numerous conferences and workshops. I am especially grateful to audiences at the biennial European Conference on African Studies in 2017 and 2019 and the annual conference of the Socio-Legal Studies Association in 2017. This research was funded by a British Academy/Leverhulme Small Research Grant (SG no. 161671). I am very grateful to the academy and to Sara Dezalay, the primary investigator. Alexander Stroh-Steckelberg and Jan Budniok began my interest in appointments. Research assistance from Maryam Nahhal on a parallel project proved invaluable. In later stages, Rachel Ellett very kindly shared her own draft manuscripts on similar topics and made a number of helpful comments. My greatest thanks, however, go to my anonymous interviewees, who have been exceptionally generous with their time. All remaining errors are of course my own.