INTRODUCTION
A hardheaded political science of judicial appointments has tried to rescue policy making from delusions of judicial independence. Designers of judicial selection systems, it argues, have reified independence at accountability’s expense. In doing so, they have lost sight of the many delicate political compromises that have always and everywhere actually been necessary to protect the rule of law. In “transitional” states, as a result, “judicial brotherhoods or even mafia-like structures” have been able to evade accountability while hiding behind a “public image of ‘norms in black robes’” (Holmes Reference Holmes and Dworkin2004, x; Bobek and Kosař Reference Bobek and Kosař2014, 1289). Judicial appointment commissions (JACs) are now almost ubiquitous. Footnote 1 Their “allure” stems from their “seemingly apolitical character” (Volcansek Reference Volcansek2011, 812–13). The politics of judicial selection, however, “runs deep” (Gee Reference Gee and Seibert-Fohr2012, 121). An “independence-accountability paradox” is “basic” and can only be negotiated, never abolished (Shapiro Reference Shapiro2013, 274–75). By embracing the “new orthodoxy” of “merit selection,” donors are thus guilty of “armchair institutional reasoning” (Garoupa and Ginsburg Reference Garoupa and Ginsburg2015, 99, 137–39).
Where, then, do these delusions come from? Michal Bobek and David Kosař (Reference Bobek and Kosař2014, 1258–59) point out that judges themselves have drafted many international appointment standards. More commonly, however, political science accounts explain the global rise of the JAC as a response to the “judicialization of politics.” Courts worldwide now rule on questions that would previously have been decided within informal, bureaucratic, or political arenas (see generally Tate and Vallinder Reference Tate and Vallinder1995; Dressel and Mietzner Reference Dressel and Mietzner2012; Brett Reference Brett2018). This “new age of judicial power” is responsible for growing “public and political interest in who judges are and how they are chosen,” and it has thus produced pressures for new and more transparent selection systems (Malleson Reference Malleson2006a, 3). Nuno Garoupa and Tom Ginsburg (Reference Garoupa and Ginsburg2015, 137–39) also explain JACs in these functionalist terms, even while (confusingly) denouncing merit selection as a dysfunctional “best practice.” On their view, the inclusion of multiple stakeholders on JACs “promise[s] that no one institution can easily dominate the judiciary” and “aim[s] at achieving the appropriate balance between independence and accountability in the face of two recurrent phenomena—the politicization of the judiciary and the judicialization of politics—that are reflected in different degrees around the world” (compare Volcansek Reference Volcansek2009, 797–800).
This article presents evidence from Southern Africa (Figure 1) confounding these expectations. In recent decades, there has been increasing pressure across the region to formalize senior judicial appointments, notably through JACs. Yet this has reflected neither simply the self-interest of judges nor the judicialization of politics. The senior judiciary, indeed, has often opposed more formal appointment regimes, and judicialization alone has not produced demands that multiple stakeholders be included on JACs. Pressure for formal appointments also reflects broad social changes. In short, even the common law judiciary is now subject to the same demands for organizational accountability and descriptive representation that sociologists of other professions have documented for decades. And, in Southern Africa, these demands have now combined with long-standing political and moral imperatives to “localize” senior expatriate positions.
Figure 1. Southern Africa. Credit: Wikimedia, https://commons.wikimedia.org/wiki/File:Southern_Africa_new_map.png.
This argument is structured as follows. First, I use the case of England and Wales to distinguish between organizational and political accountability and between descriptive and formalistic representation. Conflating these categories, I argue, has led political scientists to miss how new and fundamental challenges to professional authority have reconfigured supposedly recurrent policy dilemmas. Second, I draw on a wide range of sources—including interviews with retired judges—to reconstruct shared informal institutions that governed senior judicial appointments in Southern Africa before recent pressures for formalization. The third and longest section contrasts the origins of recent pressures for formalization in a variety of jurisdictions: South Africa, Namibia, Botswana, Lesotho, and Swaziland/Eswatini. It emphasizes how the South African judges that once dominated these benches criticized elements of the new JAC model intended to “de-politicize” appointments. And it shows that, while “judicialization” has helped fuel demands for change in some jurisdictions (notably, Lesotho), it has strikingly failed to do so in others (notably, Namibia). New judicial institutions thus reflect broadly social as well as narrowly political pressures.
Organizational Accountability
Judicial organization in Southern Africa is still largely inherited from British colonialism (discussed later in this article). Until the late twentieth century, the senior judiciary in most Commonwealth jurisdictions remained an almost archetypical self-governing profession (compare British academia in Eustace Reference Eustace1995, 71). In England and Wales, judges were formally appointed by the lord chancellor, a member of the executive. In practice, however, judges were approached after “secret soundings” with the senior judiciary: an opaque process known as the “tap on the shoulder” (Gee et al. Reference Gee, Hazell, Malleson and O’Brien2015, 159–93). In civil law systems, judicial training administered by outsiders has long been almost wholly uncontroversial. In Britain in the 1970s, by contrast, senior judges could still describe this as an intolerable assault on their independence (Kirby Reference Kirby1999, 147–48; Derbyshire Reference Derbyshire2011, 103–4). Ministers, finally, had no say in discipline. As late as the 1990s, they still cited judicial independence as a reason for not seeking to remove the most notorious judge in England and Wales, a notorious misogynist who had once refused to apologize for kicking his own taxi driver in the groin (The Times 2021).
The 2005 Constitutional Reform Act (CRA) ended this era.Footnote 2 Formal political accountability declined, and the lord chancellor’s role was drastically reduced. “Organizational” accountability to external audiences, however, was greatly enhanced. The new Supreme Court had to produce performance statistics (Woodhouse Reference Woodhouse2007, 164). A new JAC for England and Wales included a large lay membership and a lay chair who would introduce “fresh ideas” and a human resources approach (Malleson Reference Malleson2006b, 48). This transparent regime has its ritual excesses: the Supreme Court now advertises vacancies on Instagram (Law Society Gazette 2020). Such pressures to answer to “profane” audiences are not, however, unique to judges. They are found across diverse professions and jurisdictions; so many, indeed, as to be inexplicable solely with reference to functional imperatives within law and politics. The contrast between profession and organization is a classic sociological theme, once tackled by Max Weber and Emile Durkheim (cited in Ackroyd Reference Ackroyd, Dent, Bourgeault, Denis and Kuhlmann2016, 16–18, 27–28). But the hierarchical, bureaucratic authority of the organization has gradually displaced both the formal political authority of lawmakers and the collegial forms of professional authority derived from claims to specialized knowledge (see generally Freidson Reference Freidson1994, 128–46). Continental and Scandinavian professions have traditionally been characterized as combining collegial and organizational modes of governance, unlike their more authentically self-governing and collegial Anglo-American counterparts. Recently, however, these models have converged across professional domains (see, for example, Svennson Reference Svensson, Evetts and Svensson2010, 146).
Descriptive Representation
Perhaps the primary justification for the CRA was that it would make the judiciary more representative (Malleson Reference Malleson2006b, 43; Gee et al. Reference Gee, Hazell, Malleson and O’Brien2015, 161–62). Lack of diversity had become an “international embarrassment,” which the new JAC was mandated to rectify (Derbyshire Reference Derbyshire2011, 14). In 1990, only two of the eighty-three High Court judges were women, and, as of 2021, no judge from an ethnic minority background has served on the Supreme Court (see Volcansek Reference Volcansek2009, 793). This new focus on representation, however, was of a narrow and specific sort. To borrow Hanna Pitkin’s (Reference Pitkin1967) terms, it was descriptive, not formalistic, substantive, or symbolic. Footnote 3 That is, the JAC was to focus only on the extent to which (judicial) representatives shared (racial and gender) characteristics with those represented. It did not aim at formalistic representation authorized through democratic processes, a form of representation that political scientists often conflate with “accountability.” Nor did it aim at substantive representation, where agents advance principals’ policy preferences, or symbolic representation, where representatives are subjectively accepted by those whom they represent.
Conflating these forms of accountability and representation may explain why external observers have mischaracterized the English and Welsh reforms in such contradictory ways. The Indian Supreme Court, for example, has cited the CRA as an example of a “trend … to free the judiciary from executive and political control … based purely on merit” (quoted in Chandrachud Reference Chandrachud, Sengupta and Sharma2018, 1, n. 2). Political scientists, by contrast, have cited the JAC’s inclusion of multiple stakeholders as a move toward the “accountability” inevitably triggered by Britain’s own judicialization of politics (Volcansek Reference Volcansek2009, 794; Garoupa and Ginsburg Reference Garoupa and Ginsburg2015, 126–27). In reality, however, the CRA reflected both international normative pressures and local political forces. But these normative pressures were not primarily for merit selection. Indeed, as early as the mid-twentieth century, “most” had already “accepted that [executive] appointments were made on merit, with no weight attached to partisan considerations” (Gee et al. Reference Gee, Hazell, Malleson and O’Brien2015, 161). The more significant components of the new international orthodoxy were, in fact, its emphases on descriptive representation and organizational accountability. Formal political accountability and representation were increasingly taboo.
New Orthodoxies
In 1988, Ontario’s JAC pioneered the inclusion of “demographic considerations” in nomination criteria (see Corder Reference Corder1992, 214–16). At this time, international standards still only stipulated that judges be appointed “on merit” or at least “not for improper motives” (International Bar Association 1982; United Nations 1985). After 1989, they became more prescriptive, insisting on less executive representation in appointment bodies (see, for example, International Foundation of Electoral Systems 2004; Venice Commission 2007). Commonwealth instruments, meanwhile, began seeking to make all levels of the judiciary descriptively representative of society, rendering merit selection compatible with the need to progressively attain gender equity or remove gender imbalance alongside “other historic factors of discrimination” (Commonwealth Secretariat, Commonwealth Parliamentary Association, Commonwealth Legal Education Association, Commonwealth Magistrates’ and Judges’ Association, and Commonwealth Lawyers’ Association 2004, 17). These ideas are now orthodox. As one recent “primer” for constitution builders puts it, “[f]actors to consider in the appointment process include (a) the independence of the judiciary from the executive and legislature, party politics and vested interests; (b) ensuring the representativeness and inclusiveness of the judiciary, especially with regard to gender, status, ethnicity or origin” (Bulmer Reference Bulmer2017, 3–4).
The global rise of the JAC, meanwhile, has helped entrench organizational accountability. Multi-member commissions including lay stakeholders have now become the most popular governance technique for judicial selection. In the thirty years since 1985, the proportion of jurisdictions worldwide choosing their judges this way leapt from 10 percent to 60 percent, and, in the Commonwealth, the figure became 81 percent (Garoupa and Ginsburg Reference Garoupa and Ginsburg2015, 101; van Zyl Smit Reference Van Zyl Smit2015, xvii). Of those JACs created in recent years, the clear global trend has been for larger commissions with lay memberships and a majority of neither (senior) judges nor politicians (see also the “model constitutional clause” in Commonwealth Magistrates’ and Judges’ Association and Commonwealth Legal Education Association 2013, 6). Footnote 4 As Linn Hammergren (Reference Hammergren2002, 153) once summarized, “[w]hile there has been an accompanying trend to stress “merit” appointments, the new demand is for the entire mechanism to be more transparent and open, if not to actual participation of the wider public, then at least to their scrutiny.” Thus, even in Zimbabwe, where partisan competition over senior judicial appointments is notoriously fierce, aspirant judges are publicly interviewed in a standardized human resources format (Masengu Reference Masengu2016; Verheul Reference Verheul2021, 193–96). And, in Turkey, President Recep Erdoğan has managed to present increasing control over appointments through lay proxies as compliance with international best practice (Varol, Dalla Pellegrina, and Garoupa Reference Varol, Pellegrina and Garoupa2017, 198–99; George Reference George2018).
INFORMAL APPOINTMENTS IN SOUTHERN AFRICA
This section reconstructs the informal institutions that until very recently still governed the most senior judicial appointments in Southern Africa. These institutions emerged despite British late colonial efforts to formalize. The section that follows shows how local social and political shifts have combined with the new international orthodoxies outlined above to displace informal mechanisms. Britain’s approach to law during decolonization was characterized by double standards. It sought to empower courts while insulating them from political control. It advocated Bills of Rights for colonies while opposing a written constitution for the United Kingdom (see, for example, Hirschl Reference Hirschl2004, 97). And, after 1954, the colonial administration exported a JAC model that it would never have contemplated for England and Wales. These bodies, however, were not designed to promote transparency to profane audiences. They were usually small in their membership and always opaque in their procedures. Their chair was typically a chief justice who sat alongside one or two other senior judges, the chairman of the Public Service Commission, and, in some cases, the attorney general (van Zyl Smit Reference Van Zyl Smit, Gee and Rackley2017, 64–65). They were expected to appoint all senior judges, often with only the exception of the chief justice. By convention, the executive was expected to act on their advice. Nigeria’s Constitution soon became an African blueprint. It included a Bill of Rights modeled on the European Convention on Human Rights and made the removal of judges subject to lengthy judicial proceedings (Nwabueze Reference Nwabueze1977, 267–68; Parkinson Reference Parkinson2007, 17).Footnote 5 The cumulative effect was to constrain rapid “localization” of the expatriate judiciary after independence.
In most former British sub-Saharan colonies, the result was precisely that anticipated by political science. Over-emphasizing judicial independence produced “political kickback and increased (formal political) accountability” (see Shapiro Reference Shapiro2013, 259). By the early 1970s, half of Britain’s former African colonies had thus already reverted to some form of executive appointment, often following judicial challenges to authoritarian legislation or the legality of coups (Nwabueze Reference Nwabueze1977, 268–70; compare Palley Reference Palley1969, 1–3). Principled arguments for these new arrangements highlighted their capacity to rapidly produce a more (racially) representative judiciary. These arguments combined symbolic notions of representation with more descriptive ones that are characteristic of recent orthodoxy. In Tanganyika/Tanzania, for example, Prime Minister (later President) Julius Nyerere initially favored replacing white expatriate judges by first appointing from the relatively large pool of qualified local Asian lawyers: a process clumsily labeled “belongingization.” Soon, however, the government concentrated its efforts on recruiting Black judges from elsewhere in the Commonwealth, first from Nigeria and later the Caribbean. These men, Nyerere asserted, could symbolically represent Tanzanians “by virtue of their shared experiences as Africans under British colonial rule” (see Feingold Reference Feingold2018, 165–236).
Not every Commonwealth country aimed at transforming its expatriate bench. Conspicuous among these were Botswana, Lesotho, and Swaziland (renamed Eswatini in 2018), the so-called “BLS” grouping. These former British “High Commission territories” were all relatively late to decolonize—in the mid-1960s—and were all economically dependent, to some degree, on their powerful South African neighbor. This dependence limited the political space for signaling a break with the colonial past (for an overview, see Polhemus Reference Polhemus and Rich1994). Footnote 6 Socialist and radical nationalist political parties were, in any case—when unbanned—marginal influences on these “neo-traditionalist” regimes (see, for example, MacMillan Reference MacMillan1985, 658–66; Maundeni Reference Maundeni2010, 132–33; Gulbrandsen Reference Gulbrandsen2012, 117–21). Following independence, these BLS states inherited a common Appeal Court and university law faculty established by their British colonizer. Although all three countries soon established their own appeal courts, these courts retained a shared pool of judges (Crawford Reference Crawford1970, 476). The majority of these judges were South African retirees. This was a source of potential international embarrassment during the apartheid era, but the embarrassment was mitigated somewhat by the relative liberalism and professional prestige of those who served. Footnote 7 By the 1980s, Botswana alone had begun appointing from elsewhere in the black Commonwealth (for background, see Frimpong Reference Frimpong2007, 118).
Between 1945 and 1990, meanwhile, Namibia was occupied by South Africa, which treated the territory as its de facto “fifth province”: South West Africa (Silvester Reference Silvester2015). South African judges thus also served on its Supreme Court (although final appeal still lay with the Appellate Division in Bloemfontein). Again, limited localization only began in the 1980s, with South African-trained white Namibians slowly replacing South Africans (see, for example, Smuts Reference Smuts2019, 69–70). After 1990, independent Namibia gradually transformed its Supreme Court. A majority of local judges became the norm in the mid-2000s at a time when all (white) expatriate benches were still standard in the BLS region. The first all-Black panel to sit in a BLS appeal court dates only from 2012. Footnote 8
In theory, these expatriate judges were recruited using both formal and informal means. Posts were not advertised, and potential candidates were approached following British-style “secret soundings.” Formally, however, the final appointment was still ultimately made by some form of JAC (with a small or non-existent lay membership). In the BLS region, unusually, these bodies remained small and (until very recently, at least) opaque. They have retained other increasingly unusual features such as unfettered executive power to appoint the chief justice (van Zyl Smit Reference Van Zyl Smit2015, 22, 35). Following independence in 1990, Namibia adopted a similarly constituted JAC. Its five members are all judges and lawyers (including the attorney-general). Deliberations are private. Parliamentary debates during the Constitution’s drafting gave little thought to organizational accountability (Mathe Reference Mathe2009, 70–73, Appendix D). The formal mechanism as a whole was remarkably insulated from political influence.
In reality, however, on the appeal courts at least, even these limited formal mechanisms were soon supplanted by informal ones imported by South African judges. Apartheid South Africa largely followed British practice, with no JAC and appointments made following a “tap on the shoulder” by the minister of justice after consultation within the profession. Descriptive representation was certainly no criterion. In 1990, all permanently appointed South African judges were white, and all but two were male (Corder Reference Corder and Lee2011, 97–98). “The repayment of political debts” may have played some role in appointments (Moerane and Trengove Reference Moerane and Trengove1995, 149). But overt interference with judicial self-government was rare. The fiercest controversies erupted when ministers refused to honor a convention that the chief justiceship “automatically went to the senior judge of appeal” (Dugard Reference Dugard1978, 286; Cameron Reference Cameron1987, 343–46). This convention then travelled with South African judges to appeal courts in the BLS region. Judges were assigned a position in the order of seniority according to when they arrived on the court, with the court president having the discretion to assess seniority in other ways if appointments were made on the same day. Footnote 9 As recently as 2015, the (all white South African) Court of Appeal bench in Lesotho resigned en masse, citing, among a variety of other reasons, the prime minister’s refusal to observe this convention by appointing a judge directly from the Labour Appeal Court (V. Shale Reference Shale and Thabane2017, 172–73). Footnote 10 Relevant actors have understood this unwritten convention to be a rule of conduct and have sought to enforce it outside official channels. It thus constitutes an informal institution (Helmke and Levitsky Reference Helmke and Levitsky2004, 727).
Unsurprisingly, other South African variants on British practice also survived late colonial formalization. The resilience of “secret soundings” was notably obvious from the earliest days of independence. The prime minister of Lesotho appears to have used independence celebrations to ask visiting appeal court judges to consult with their (South African) colleagues about whom to appoint. Footnote 11 Thereafter, formalities were apparently dispensed with ever more openly. One South African retiree appointed to Botswana’s Court of Appeal in the late 1990s did remember being interviewed by the chief justice. But this took place in the office of an old friend and judicial colleague who had recommended him for the post. Questions were perfunctory, and answers were contained in the curriculum vitae. Footnote 12 A Scottish colleague was appointed following a similar meeting with the chief justice in London (Brand Reference Brand1995, 190). Even for Botswana’s High Court, constitutional appointment procedures were “little used” (Othlhogile Reference Otlhogile, Compagnon and Mokopakgosi2001, 365).
The other South Africans to whom I spoke, appointed throughout the BLS region between 2007 and 2012, did not encounter any application or interview requirements. One had his appointment arranged by the judge president of the Lesotho Court of Appeal (a South African and an old friend). Footnote 13 Another was appointed on an emergency basis to Swaziland’s Supreme Court after an old friend serving there encountered health problems days before a court session. Footnote 14 He too never encountered the Judicial Service Commission. In Namibia, too, the creation of a JAC finally following independence does not appear to have changed appellate appointments. A Zambian expatriate appointed in the early 1990s (after retirement at home) and again in the late 1990s (after retiring from a small West African jurisdiction) was approached without warning by the chief justice on both occasions, again without an interview. Footnote 15 (The Commonwealth Magistrates’ and Judges’ Association in London has helped inform court leaders about these imminent retirements.) Footnote 16 One South African judicial memoir recalled exactly the same process in 1981, prior to Namibian independence (Diemont Reference Diemont1995, 291). Before 2009, only one expatriate judge in the whole region had been a woman (Leonora van den Heever). Both political accountability and new orthodoxies were absent everywhere.
CASE STUDIES
Economic dependence on South Africa has often seen these four states analyzed as a unit: the “BLNS” region (see, for example, Gibb Reference Gibb1997). But they share legal dependence too (see generally Fombad Reference Fombad2010). They are one of only four distinct groups of countries where foreign judges still routinely adjudicate constitutional questions (see generally Dixon and Jackson Reference Dixon and Jackson2019). Footnote 17 Two of these groups, moreover—small island nations (in the Pacific and Caribbean) and European principalities (such as Andorra and San Marino)—do so almost overwhelmingly for reasons of practical necessity. In Kosovo and Bosnia-Herzegovina, by contrast, foreign judges sit thanks to European Union requirements. In Southern Africa, these arrangements have represented, to a greater degree than elsewhere, a domestic political choice. Footnote 18 The BLNS region thus offers a wonderful opportunity to use the “most similar cases” method of comparison (for application to comparative constitutional politics, see Hirschl Reference Hirschl2014, 245–53). This section analyzes the diverging speed and scope of local pressures to formalize a once shared informal institution. It begins, however, with the dramatic formalization of appointments in post-apartheid South Africa, a shift within the regional hegemon that shaped later developments in the periphery.
South Africa
The section that follows analyzes South Africa’s move to formal judicial appointments during the post-apartheid transition. This was an anticipation of the new age of judicialized politics that would be ushered in by its famously progressive constitution. Confronted with political pressures for executive appointments, the existing judiciary supported the creation of an independent JAC. They objected, however, to elements of the new orthodoxies that now sat alongside merit selection. The emergence of these new orthodoxies had thus reconfigured supposedly timeless dilemmas about how to balance “accountability” with “independence.” The mid-1980s saw the African National Congress (ANC) and its Communist party allies gradually abandon their traditional socialist skepticism toward constitutional rights. During the negotiation of an interim constitution to organize the transition from apartheid (1991–93), they focused instead on creating a new, activist constitutional court (see Klug Reference Klug2000, 81–85). This would be staffed by new judges who would interpret a bill of rights in a progressive manner (Spitz and Chaskalson Reference Spitz and Chaskalson2000, 202–7). The appointment mechanism for this new court was the very last issue to be agreed during talks, and it proved intensely controversial. The ANC’s initial position was that executive appointments should be approved by a large parliamentary majority, a mechanism adopted by comparable courts in Europe and Africa (O’Malley Reference O’Malley1993). This would safeguard the interests of (white) minorities while making politically powerful judges politically accountable. It was a scheme endorsed even by Arthur Chaskalson, a human rights lawyer and constitutional drafter who eventually headed the new court.
To the ANC’s amazement, however, the ruling National Party (NP) proposed instead that the president have almost unfettered appointment powers. Astonishingly, some NP negotiators apparently expected that their party would continue to receive a significant Black vote after apartheid. For them, power sharing, at least, remained a real possibility, and there was thus no need to insulate appointments from political control. The small liberal Democratic Party was horrified and desperately sought to rouse some last-minute opposition (Spitz and Chaskalson Reference Spitz and Chaskalson2000, 202–7). Its argument was that “the lynchpin of the new legal order would be open to blatant political manipulation” despite being “entrusted with far greater and more sweeping powers than any other in South Africa’s history” (Leon Reference Leon2008, 200). It obtained statements from judges and legal academics in support of a JAC that would appoint all judges, including the Constitutional Court justices. These liberal efforts shaped the final settlement. In the end, the president would only appoint the first slate of eleven constitutional court justices, in consultation with the chief justice, and with four appointees having to come from the existing judiciary. Thereafter, a JAC would appoint all ordinary judges and shortlist constitutional justices. This large commission would include an unusually large number of political appointees and none of the lay representation that most observers had expected (see Olivier and Hoexter Reference Olivier, Hoexter, Olivier and Hoexter2014, 163–64). It was still, however, “dominated by lawyers,” under the interim Constitution at least (Moerane and Trengrove Reference Moerane and Trengove1995, 149). Footnote 19 This outcome was a significant political achievement for the liberal opposition.
The first and fiercest conflicts surrounding the new Judicial Service Commission revolved around organizational accountability. Descriptive representation was of course a political priority after the end of white minority rule. The interim and final (1996) constitutions eventually directed the commission to transform the racial and gender composition of South Africa’s almost exclusively white male judiciary (Albertyn Reference Albertyn, Hoexter and Olivier2014, 255–59). Some in the legal profession have often argued—mostly anonymously—that merit is opposed to, and has been sacrificed for, diversity. But, in principle at least, the argument for transformation “has been won” (Johnson Reference Johnson2014, 605–11; see also Masengu Reference Masengu2020, 164). Accountability to profane audiences soon proved more openly controversial. The best-known disputes were triggered by most judges’ refusal to make submissions to the Truth and Reconciliation Commission (1996–2003), which had asked for a public reckoning of their role under apartheid. The judges considered this request to be an affront to their independence (see Dyzenhaus Reference Dynzenhaus1998).
The first conflicts, however, revolved around the Judicial Service Commission’s transparency, which had been left unaddressed by the Constitution. Despite “sharp difference of opinion” amongst the commissioners, it was decided that the first Constitutional Court interviews in 1994 would be held in public, and the next year the same step was taken with respect to the Supreme Court of Appeal—again, despite “strong feelings on the subject expressed by the organised Bar and the established judiciary” (Moerane and Trengrove Reference Moerane and Trengove1995, 149). Those same liberal academics who had argued most strongly for judicial independence during the transition now most favored organizational accountability. Accountability and independence were in this sense not opposed: “Openness. Responsiveness. Transparency. Accountability. Participation. The clarion calls of a new age, a new politics, a new government, a new South Africa. By holding public hearings, the Judicial Services Commission can demonstrate the death of the old ways—of secrecy, of paternalism, of exclusivity” (Klaaren and Woolman Reference Klaaren and Woolman1994, 33). One academic who adopted this stance—Etienne Mureinik, who had been the Democratic Party’s most effective operative during its campaign against executive appointment—advocated not just televising the JAC’s hearings but also publishing its deliberations and decisions (see Corder Reference Corder and Lee2011, 103). This infuriated Chief Justice Michael Corbett, and subsequent conflict between the two reportedly contributed to Mureinik’s tragic suicide in July 1996 (Lewis Reference Lewis1998, 7–10; Leon Reference Leon2008, 221).
Under the post-apartheid Constitution, an extraordinary range of political conflicts have been fought in South Africa’s courts. This judicialization has deepened organizational, but not political, forms of accountability. Proceedings have in fact become ever more formal and notionally transparent. Televised hearings began in 2010, and the Constitutional Court ordered disclosure of the JAC’s private deliberations. Footnote 20 Some have even called for the proceedings of the sifting subcommittee, which examines applications, to be made public (Judges Matter 2016, 4; Masengu Reference Masengu2020, 168–70). This certainly does not mean, of course, that politics and informality have been abolished. The legacy of “secret soundings,” first, is still evident from the disproportionate weight attached to nominations from the organized legal profession and the continued consultation among judges on some courts in advance of hearings (Oxtoby and Masengu Reference Oxtoby and Masengu2017; Judges Matter 2018, 19–20). Political lines of questioning are, moreover, now more common than ever (Oxtoby Reference Oxtoby2021, 42–44). One especially partisan interview round has had to be rerun on order of the High Court (Pillay Reference Pillay2021). Since 2009, it has even been widely suspected that the ANC has been running its own undeclared appointments process in parallel to the Judicial Service Commission (see, for example, Brickhill, Marcus, and Corder Reference Brickhill, Marcus and Corder2011, 21; Olivier and Hoexter Reference Olivier, Hoexter, Olivier and Hoexter2014, 169–72; Hoexter Reference Hoexter, Gee and Rackley2017, 93).
This “caucusing” has been at least a theoretical possibility ever since the 1996 Constitution came into force, granting the president and the ANC a majority of political appointments to the Judicial Service Commission. In practice, however, the commission began by appointing the “truly best candidates” (Wim Trengove, quoted in Olivier and Hoexter Reference Olivier, Hoexter, Olivier and Hoexter2014, 170). By the time Jacob Zuma was elected president in 2009, however, he was dealing with numerous—albeit sometimes politically motivated—prosecutions for corruption (Klaaren and Roux Reference Klaaren and Roux2010; le Roux and Davis Reference Le Roux and Davis2019, 277). His supporters thus had every incentive to try and obtain a more pliant senior judiciary. The policy of appointing officials most likely to “implement the will of the leadership of the party as primary directive” had long been justifiable ideologically within the ANC using the Leninist language of “cadre deployment” (Booysen Reference Booysen2011, 379–81, 395, n. 45). Now, something like this policy was seemingly extended to the judiciary, despite it being clearly inconsistent with the constitutional principles governing public administration (see, for example, Malan Reference Malan2014, 2020, n. 186). Recent revelations that the ANC’s Deployment Committee was (still) making its own secret recommendations for judicial appointments in 2019 have certainly scandalized liberal opinion (see, for example, Davis Reference Davis2022). On a pessimistic view, the introduction of a JAC after apartheid may thus “have succeeded merely in replacing ‘one form of undue influence with another’” (Hoexter Reference Hoexter, Gee and Rackley2017, 100).
For our purposes, however, the important point is that these (resilient) features of appointment politics are always identified as problems by the appointments system, and greater accountability to external audiences is almost always proposed as a solution. Thus, when President Cyril Ramaphosa was challenged about the “cadre deployment” of judges at the Commission of Inquiry into State Capture, his suggestion for reform was that this process be made visible to the public and non-ANC members of the JAC (Commission of Inquiry into State Capture 2021). Strikingly, moreover, where the South African experience has informed constitutional design elsewhere, it has been its organizational, and not political accountability, dimensions that have been exported. Footnote 21 Reference to the South African “model” is ubiquitous in discussion of appointments reform in the BLNS region. But there has never been any suggestion that large numbers of parliamentarians be included on JACs or—still less—that “cadres” be “deployed” to independent courts.
Namibia
In Namibia, apartheid rule ended in 1990. As in South Africa, a new Bill of Rights soon judicialized politics. Unlike in South Africa, however, the ruling South West African People’s Organization (SWAPO) has not insisted on formal political representation in appointments. As this section will show, it has concentrated its efforts instead on descriptive representation and on expanding the pool of eligible Black Namibians. Formalizing the workings of the JAC has been a slow and gradual process, while international instruments have only recently been used to advocate greater organizational accountability. There is compelling evidence that, as a liberation movement in exile, SWAPO had always been considerably less committed to socialist ideas than its Cold War antagonists had feared (Dobell Reference Dobell1998). In 1989, certainly, as the Berlin Wall was coming down, it suddenly swapped a “scientific socialist” constitutional blueprint for one that contained a Bill of Rights. Even this draft, however, still envisaged the executive appointment of judges (Steytler Reference Steytler1993, 486–87).
It is remarkable, therefore, that during constitutional negotiations SWAPO accepted a JAC without any of the formal political accountability later insisted upon by the ANC in South Africa. A constituent assembly “extensively debated” adopting US-style parliamentary confirmation procedures, but the result was still a small, depoliticized JAC (Diescho Reference Diescho1994, 37; Mathe Reference Mathe2009, 70–73, Appendix D). This body comprised only the attorney-general, the chief justice, the judge president of the High Court, and two lawyers’ representatives. Appointment power was thus “firmly in the hands of the judiciary and the organized legal profession” (Steytler Reference Steytler1993, 488). And, in practice, the commission would play no role in the first decade of appointments to the new Supreme Court (see the discussion later in this article). These appointments were made entirely on an acting basis through informal contacts initiated by the chief justice. The Constitution as a whole placed great stress on descriptive representation (“affirmative action”) but mandated no appointment criteria. The JAC was effectively free to operate without external scrutiny. The existing judiciary was delighted. As the judge president declared in the address to the Law Society of Namibia’s annual general meeting in 1997:
[T]he role played by the Judicial Service Commission in maintaining the standard of the Bench and to depoliticise any appointment to the Bench is of paramount importance. The way in which the Commission is constituted can leave no doubt that all the members thereof are committed to ensure the independence of the Bench and that it maintains a high standard … whenever I am questioned by visitors from overseas concerning the independence of the bench, my argument begins and ends with the Judicial Service Commission. (Quoted in Steinmann and Cohrssen Reference Steinmann and Cohrssen2006)
Hard-headed commentators worried, however, that judicialization would undermine this formal independence (Steytler Reference Steytler1993, 497). Rulings against the government on symbolically sensitive questions—notably, the sentencing of pro-apartheid coup instigators and, later, the Caprivian secessionists—did indeed soon elicit outraged statements from senior politicians. They accused white liberal judges of racism and apartheid sympathies (see, for example, O’Linn Reference O’Linn2010, 1–27). But all subsequent attempts within Cabinet to politically reshape the commission were “held at bay” by a countervailing “liberal agenda [that] operated within the executive branch” (VonDoepp Reference VonDoepp, Halliday, Karpik and Feeley2012, 472). Footnote 22 A 2004 manifesto promise to make the JAC “adequately represent all relevant stakeholders” and “comply with the will of the people” remained dead letter (SWAPO 2004). The government, however, did become strongly focused on improving descriptive representation. Like other new states, it sought to localize its judiciary by lowering the bars to entry to the profession and expanding the pool from which judges could be appointed (compare Harrington and Manji Reference Harrington and Manji2019). As summarized by Peter VonDoepp (Reference VonDoepp2009, 122), “apparent threats to judicial autonomy did not necessarily reflect a government program to control or manipulate the bench. Efforts to deprioritise merit appointments in judicial appointments, for example, partially reflected attempts to transform the legal system to make it more representative of Namibia’s racial makeup.”
SWAPO’s first efforts at transformation nonetheless angered lawyers. During early apartheid, the Society of Advocates (SOA) had regularly complained about appointments of under-qualified South African civil servants. Footnote 23 Informal local “soundings” only began in the 1980s. These historic sensitivities about political interference help explain the (still mostly white) SOA’s fierce opposition to legislation in 1995 that, inter alia, required the JAC to have “due regard to affirmative action” on race and gender. Footnote 24 The SOA outraged SWAPO by (unsuccessfully) appealing to the International Bar Association and the United Nations Human Rights Commission with demands for merit selection (Kavendjii and Horn Reference Kavendjii, Horn, Horn and Bösl2008, 295; VonDoepp Reference VonDoepp, Halliday, Karpik and Feeley2012, 470). Even Black lawyers’ representatives joined the SOA, however, in opposing later efforts to exempt “legal practitioners” from certain exams. A temporarily united profession doubted that this was a sincere attempt to make the judiciary more representative. They treated it instead as a means of allowing SWAPO’s preferred candidate to be appointed prosecutor-general. In 2002, lawyers’ associations challenged the legislation in court. Their lawsuit inadvertently formalized appointment powers by uncovering the continued existence of (foreign) soundings before acting appointments in contravention of the Judicial Service Commission Act 1995.Footnote 25 Eight Supreme and High Court judges, including three Zimbabweans and a Zambian, all had to have their appointments discretely rationalized in order to avoid judicial crisis (Tjombe Reference Tjombe, Horn and Bösl2008).
More recent controversies surrounding the same prosecutor-general have triggered the first sustained (but still limited) political pressures for organizational accountability. In late 2020, it became clear that Martha Imalwa was going to seek reappointment for a third term. This was in the context of high-profile electoral and corruption disputes that have dramatically deepened the judicialization of Namibian politics (Melber Reference Melber2020, 101–11; Ndeunyema Reference Ndeunyema2020). Although not yet directly threatening SWAPO’s grip on power, these disputes have nonetheless obliged judges to adjudicate on its central political interests for the first time (contrast VonDoepp Reference VonDoepp2009, 146). Opposition parties now demanded transparency from the JAC, citing a new generation of international instruments demanding “extensive stakeholder engagement at all relevant stages” (see, for example, Kavetu Reference Kavetu2021). Although the position was publicly advertised for the first time, demands for South African-style public interviews have been refused.
Even this, however, marks a watershed. Formalization has hitherto been slow, gradual, and largely shaped by economic, not political, pressures. In 2011, the JAC published regulations for the first time. These still allowed the chief justice to “privately contact suitable persons … and … privately consult … comparable institutions and bodies in other Commonwealth states.” Footnote 26 Interviews remained at the JAC’s discretion. One judge appointed in the mid-2000s had only had to send a curriculum vitae. Footnote 27 Another judge, appointed to the Supreme Court as late as 2016—and famous for his rulings against the government in the Caprivi “treason trials”—was also not interviewed. He was the only nominee of all the lawyers’ associations. Footnote 28 That this was even possible for such a politically significant appointment highlights the severe, but underappreciated, practical constraints on appointment politics in small jurisdictions with few aspiring judges. Governments such as Namibia’s that wish to retain at least some experienced personnel on the bench will often be forced to appoint politically unsuitable judges, even if only temporarily (see Bukukura Reference Bukurura2002, 28–30). Only recently have multiple candidacies become routine, obliging the Law Society to formalize internal nomination procedures. Footnote 29 There are a host of reasons, in short—political, economic, and social—why the judicialization of politics need not politicize the judiciary.
Botswana
This section shows how in Botswana, too, judicialization can only partially explain recent pressures to formalize appointments. By itself, it was not enough to make the Court of Appeal a focus of political attention. Two additional social conditions were necessary: the emergence of organized interests in Botswanan politics and a pool of qualified local lawyers from which judges could be appointed. This process was itself, in turn, fuelled by two cultural catalysts: a pronounced “legal consciousness” and a widespread anxiety surrounding opaque (even occult) uses of political power. These pressures to formalize, once they emerged, combined demands to reduce formal political accountability with demands to increase organizational accountability. References to international standards governing descriptive representation, however—of women, in particular—have been rare (compare Bauer and Ellett Reference Bauer, Ellett, Bauer and Dawuni2015).
Botswana was the only mainland African country under majority rule to continuously hold multiparty elections between the mid-1960s and the mid-1990s (Bratton and van de Walle Reference Bratton and van de Walle1997, 7–8). These elections have been essentially free and fair, even if always won by the Botswana Democratic Party (BDP). The independence constitution thus survived the Cold War, including the small JAC that the British had hoped would guard against rapid “localization.” Tensions with the executive did emerge, but these never led to attempted restructuring or political “kickback” (see, for example, Ontebetse Reference Ontebetse2017). The BDP remained notionally committed to “localization” (Botswana Democratic Party 1979), but its closest actual approximation was the appointment of Ghanaian and Nigerian judges to the Court of Appeal in the early 1980s: a Ghanaian chief justice having become impatient with the judicial conservatism of his South African colleagues (Frimpong Reference Frimpong2007, 118).
The case Dow v. Attorney General in 1992 appeared to mark a watershed.Footnote 30 The Appeal Court declared that “it is the primary duty of judges … to make the Constitution grow … to meet the just demands and aspirations of … larger human society.” Footnote 31 This was, in one judge’s words, a “monumental” case, judicializing politics (Tshosa Reference Tshosa, Quansah and Binchy2009, 70–74). And, soon afterwards, the JAC expanded from three to seven judges, creating the first permanent majority of practicing lawyers but maintaining a majority of presidential appointees (Aguda Reference Aguda1997, 113). This expansion, however, actually reflected an increasing workload rather than a need to incorporate more stakeholders created by judicialization. In the 1990s, Botswana’s tiny legal profession had begun rapidly expanding (see, for example, Bauer and Ellett Reference Bauer, Ellett, Bauer and Dawuni2015, 38–39). In 1992, the first Motswana had sat on the High Court (the Court of Appeal would remain wholly expatriate as late as 2010). Footnote 32 The chief justice, the JAC’s only practicing lawyer, thus suddenly found himself busy with commission tasks (Aguda Reference Aguda1997, 107–8). Reforms to appointments certainly did not result from public criticism of existing arrangements (106–7). Less than 5 percent voted in a 2001 referendum approving them (R. Werbner Reference Werbner2004, 87). The Court of Appeal, meanwhile, was left essentially untouched. Judicialization produced no change in the informal arrangements governing appointments to the highest court.
Social changes, however, were exerting gradual pressure. By 1996, Botswana finally had an organized profession, and, by the mid-2000s, many Law Society members were eligible for judicial appointment. The society’s leadership now began criticizing secretive appointments, highlighting “positions seemingly tailored for some people,” which was an unambiguous reference to Ian Kirby, a naturalized white Botswana who had been shuttling between positions at the High Court and attorney-general’s office (Good Reference Good2017, 120). In 2008, High Court posts were advertised for the first time, but President Ian Khama rejected the JAC’s nominees (Modise Reference Modise2009). The Law Society then began challenging the legality of this refusal, highlighting the unusual dominance of political appointees on the JAC. Footnote 33 They also (unsuccessfully) demanded organizational accountability in the form of public interviews. Intense public debate suddenly focused on extreme formalities. The Constitution, for example, declares that “judges … shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission.” This raised the question of whether the comma in the sentence was “syndeton or asyndeton” (Gasennelwe Reference Gasennelwe2018).
It took longer for appellate appointments to become a political concern. The proximate cause was industrial militancy. Organized interests had been weak in post-independence Botswana, and trade unions were “actively discouraged” in the name of patriotism and development (P. Werbner Reference Werbner2014, 8). International Labour Organization conventions were only domesticated in 2005. New and more conflictual attitudes emerged, however, in the wake of the global financial crisis of 2008 and the “Arab Spring” of 2010–11. Austerity measures, intended to rescue public finances amid collapsing diamond exports, saw the largest public sector union launch the “mother of all strikes.” This was the first legal strike in the country’s history. It called for “regime change” and paralyzed services (Makgala and Malila Reference Makgala and Malila2014, 54, 128–29, 189–90). An outraged government dismissed and then refused to reinstate 750 “essential workers.” The Manuel Workers’ Union (MWU) had success challenging this refusal in the Industrial and High Courts but was disappointed at the Court of Appeal. Its supporters began contrasting the apparent conservatism of (by now) Court of Appeal Judge President Ian Kirby and the apparent progressivism of High Court Judge Key Dingake (Makgala and Malila Reference Makgala and Malila2014, 230–32; P. Werbner Reference Werbner2014, 236, 248–49). Dingake was particularly influential amongst younger High Court judges and with a progressive “new thinking” in the academy and profession. Footnote 34 Union leaders compared case allocation to “the Lotto, you either have the Key or you do not!” (Motlogelwa and Moeng Reference Motlogelwa and Moeng2012). They accused Appeal Court judges, meanwhile—especially the newer expatriates—from taking their cue from Kirby, an “executive-minded” ex-attorney-general who ran his court “single-handedly” (Bothoko Reference Bothoko2020; see also Sunday Standard 2017).
These events persuaded the MWU to challenge the informal institutions that allowed Kirby significant influence over appellate appointments. The High Court agreed with the union that most appellate judges had been unconstitutionally appointed. The Court of Appeal itself eventually agreed, but it avoided a full-blown judicial crisis by approving the retrospective regularization of its colleagues’ contracts (for details, see Sebudubudu Reference Sebudubudu, Abbink, Adetula, Mehler and Melber2018, 440). Government still refused to advertise positions, publish appointment criteria, or conduct interviews “since the Court has been appointed all along from distinguished and deserving jurists from home and abroad” (Mosikare Reference Mosikare2020). Unions, the Law Society, and some opposition politicians remain staunchly critical of these arrangements. Their arguments have increasingly combined demands for transparency and organizational accountability with a relatively new emphasis on descriptive representation in terms of race and, less often, gender (see, for example, Lekgowe and Motswagole Reference Lekgowe and Motswagole2011, cited in Bauer and Ellett Reference Bauer, Ellett, Bauer and Dawuni2015, 39). Thus, legislation regularizing appointments was hastily approved “to entrench patronage and … frustrate heightened calls for localization … [t]he CoA [Court of Appeal] … look[s] … like a court during apartheid South Africa” (Mosarwe Reference Mosarwe2017). Recruitment, meanwhile, “seems to be based on friendship, dislike or prejudice” (Bothoko Reference Bothoko2020). But the notion of symbolic representation—or diverse “life experience,” gestured at in some other African appointment criteria—has been notable by its absence. Footnote 35
The emergence of (militant) organized interests was thus essential for judicialization to translate into an appointments politics. But the process was fuelled by cultural catalysts. First, a famous “consciousness of legal entitlement” has long been as pervasive among Botswana as in Alexis de Tocqueville’s America (Merry Reference Merry1990, 181, discussed in P. Werbner Reference Werbner2021). The MWU’s exhausting and expensive litigation battles are incomprehensible without recognizing this Botswana tradition of “living their lives in courts” (Gulbrandsen Reference Gulbrandsen and Harris1996; P. Werbner Reference Werbner2014, 231–34). Second, the intense public interest in informal judicial governance that emerged after 2011 was fuelled by a “growing popular concern about … [the] hidden exercise of power” (Gulbrandsen Reference Gulbrandsen2012, 295). At times, this manifested in ethnic conspiracy theories. The first public demand for transparent judicial appointments thus originated from Tswana nationalists who accused the Kalanga minority of monopolizing localized posts (R. Werbner Reference Werbner2004, 56–57). At other times, this “popular imaginary” had been “nourished by notions of ‘authorities as potential sorcerers’” (Gulbrandsen Reference Gulbrandsen2012, 295). In 2015, for example, amid severe polarization on the bench, Chief Justice Maruping Dibotelo suspended four judges—including, most significantly, Key Dingake—for misusing housing allowances. In response, twelve High Court judges publicly accused Dibotelo of possessing an “intense belief in witchcraft,” and an anonymous letter—complete with a “demonic sigil” and “decomposing lizard”—accused him of “despis[ing] your predecessor just because he was a Kalanga” (Sunday Standard 2016; for magical beliefs as explanations in African politics, see, famously, Ellis and ter Haar Reference Ellis and ter Haar2004). Dingake never returned to the High Court and now sits in the Seychelles. There are, in short, putting it too simply, both global and more local reasons for why transparency and organizational accountability have occupied such a central place in Botswanan campaigns for appointment reform.
Lesotho
Of all the BNLS states, Lesotho most conforms with political science expectations. Since 2012, electoral reforms have greatly increased the numbers of internal political disputes decided by the Court of Appeal. The prime minister, meanwhile, has extensive powers to remove the heads of independent agencies. The result—amidst constant political uncertainty—has been repeated and spectacular levels of political interference in senior judicial appointments. In this sense, politicization did immediately follow judicialization. And regional and international agencies have responded in precisely the (misguided) manner that political science predicts: by insisting on a reduced role for the executive in appointments. However, this is not the whole story. First of all, as elsewhere, international agencies have also called for “accountability” in the form of organizational transparency and (some) improved descriptive representation. And, second, as in Botswana, the whole process has depended on broader social conditions and cultural catalysts. A volatile appointments politics is thus favored by “neo-patrimonial” features of the political system; by a small governing class, where every member of the elite becomes identified with a political faction; and, relatedly, by persistent and sensationalist media coverage of judicial affairs.
Lesotho’s institutions have been less durable than Botswana’s. Leabua Jonathan’s increasingly dictatorial regime suspended the 1966 Constitution only four years after independence. It briefly reintroduced a three-person JAC (1983–86), seeking greater international legitimacy (see generally Maqutu Reference Maqutu1990). But a new constitution would only be introduced in 1993, after several coups d’état. The new JAC still reflected the British tradition of executive appointment. Three of the four members—the chief justice, the attorney-general, and the chairperson of the Public Service Commission—were effectively appointed by the prime minister. While the fourth (not necessarily a lawyer) was appointed in accordance with the advice of the chief justice (van Zyl Smit Reference Van Zyl Smit2015, 159–60). In practice, the JAC only rubber-stamped appellate appointments arranged informally by the court’s South African judges (see earlier discussion). Under Lesotho’s first-past-the-post electoral system (which was in place from 1993 to 2002), defeated candidates routinely challenged the outcome in court, sometimes alleging, when unsuccessful, that the JAC’s composition was incompatible with international judicial independence standards (S. Shale Reference Shale2008, 112). Footnote 36
These repeated legal challenges were symptomatic of a political arena with few agreed “rules of the game.” Neither the political system nor the economy as a whole can easily be characterized as “neo-patrimonial” (for the historic importance of South African mining wages, for example, see, famously, Ferguson Reference Ferguson1990). Nonetheless, a notoriously “politicized civil service” has long ensured that “losing power means losing access to wealth and … augments the stakes of electoral success” (Weisfelder Reference Weisfelder2015, 73). South Africa has constantly mediated political conflicts, and the Southern African Development Community (SADC) has intervened militarily five times (Deleglise Reference Deleglise, McNamee and Muyangwa2021, 224). One such South African-led intervention, after the opposition rejected the results of the 1998 poll, resulted in a more inclusive mixed member proportional system, favoring smaller parties. Since 2012, in particular, this new system has produced “intense partisan struggles within a weak multiparty coalition government” and “increased demands on party central committees to be more open and transparent in the management of the candidate nomination processes and procedures” (Weisfelder Reference Weisfelder2015, 52; V. Shale Reference Shale and Thabane2017, 35). Many such demands have ended up in court.
As VonDoepp (Reference VonDoepp2005, 277–78) argues, in such situations that combine fluid political allegiances with significant “uncertainty over who will hold political power over the medium to long term,” judges in neo-patrimonial contexts have little strategic incentive to mollify executives. The period since the formation of Lesotho’s first governing coalition in 2012 has certainly seen a number of high-profile rulings against the government that relate to politically sensitive appointments and internal political party processes. These have helped precipitate an extraordinary series of prime ministerial efforts to remove judicial leaders (see I. Shale Reference Shale2018, 166–76). Michael Ramodibedi, the first Basotho to sit permanently on the Court of Appeal, was impeached as court president in 2014. On the eve of the 2015 elections Acting President Douglas Scott was then summarily replaced by Kananelo Mosito, the head of the Labour Appeal Court, after ruling that Prime Minister Thomas Thabane could not compel the director of public prosecutions to retire early. Footnote 37 The all-white South African bench now resigned en masse protesting this unexplained decision that also violated an informal norm emphasizing seniority (I. Shale Reference Shale2018, 166–76). Mosito was soon removed by a new coalition government but reappointed after Thabane’s victory in the June 2017 elections (Lesotho’s first female chief justice, Nthomang Majara, was herself soon suspended). In 2019, Thabane then sought to remove Mosito, after his Court of Appeal invalidated the ruling party’s Constitution and amidst claims that Mosito now favored an opposing party faction (‘Nyane Reference ‘Nyane2019, 16–17; Rickard Reference Rickard2019).
Amid such extreme politicization, informal practices governing expatriate appointments could hardly hope to survive unscathed. Botswanan judges recruited to hear especially contentious cases (using SADC funds) have thus recently resigned, citing delays caused by continual challenges to the constitutionality of their appointment (Phakela Reference Phakela2021). Footnote 38 Unsurprisingly, international agencies have insisted on formal guarantees of judicial independence. Endlessly delayed SADC-sponsored governance reforms are expected to reduce executive control over judicial appointments and discipline and to make merit a formal criterion (for background, see Monyake Reference Monyake2020, 7–8). This is not entirely, however, the policy package that political scientists have decried. Some element of organizational accountability and/or descriptive representation (of women, in particular) form part of most proposals (see, for example, I. Shale Reference Shale2018, 192–93; ‘Nyane Reference ‘Nyane2019, 15, 26). For twenty years, judicial leaders had opposed expanding the JAC to include more lawyers’ representatives, despite this body’s high degree of formal political accountability. They contrasted the relatively collegial authority exercised by this “professional body” with its “unwieldy” South African counterpart (Ellett Reference Ellett2011, 39). But, now, demands to include profane publics have become harder to ignore. And, indeed, the first “open process” of interviews for advertised posts has already taken place (‘Nyane Reference ‘Nyane2021).
Nor, finally, can it be said that judicialization alone explains pressures to formalize. The initial removal of Michael Ramodibedi, for example, owed as much to the unusual intimacy of the Basotho elite as it did to any Appeal Court decisions. Ramodibedi’s appointment as the first “localized” Appeal Court president had immediately sparked a protocol conflict about whether Chief Justice Mahapela Lehohla (leading the High Court) still headed the judiciary. This was, at least partly, a straightforward case of personal animosity. In 2012, infamously, one of the judges’ vehicles—precisely whose is contentious—almost injured pedestrians by overtaking the other during an official convoy (Ngcobo, Nganunu, and Ramadhani Reference Ngcobo, Nganunu and Ramadhani2013, 37–38). Such “personnel disputes” are, moreover, persistently “sensationalized … like soap opera[s]” by newspapers (Ellett Reference Ellett2011, 58; compare Phakela Reference Phakela2019). This, in turn, “has played a significant role in politicizing the judiciary” thanks to the widespread habit of identifying judges with particular political factions and personalities: an almost inevitable consequence of an entire political and (localised) legal elite that now graduates from the same National University (Ellett Reference Ellett2011, 58). Footnote 39 After the convoy incident, for example, Ramodibedi accused Leholha of having “basked in the knowledge” under the “previous regime” that “his younger brother was Deputy Prime Minister” (Ngcobo, Nganunu, and Ramadhani Reference Ngcobo, Nganunu and Ramadhani2013, 45). Both were soon out of office. In Lesotho, in short, the judicialization of politics goes furthest to explaining the politicization of the judiciary and subsequent pressures to reform appointments, but various idiosyncratic features of the polity and its politics have also favored this outcome.
Swaziland/Eswatini
Our final section briefly analyzes a more unusual case and a very different regime type. Eswatini is often described as “Africa’s last absolute monarchy” (see, for example, Motsamai Reference Motsamai2011). In late 2021, it remains relatively impervious to international pressures for reform, even as it deploys ever more violent means of repressing popular protest at home (see, for example, Maphalala Reference Maphalala2021). In Swaziland, as the country was known until 2018, an old world of informal appointments organized through South African and Commonwealth channels ended after a series of rulings that challenged principles of royal authority. But the “localized” JAC system that notionally replaced it did not seek to incorporate a wide range of stakeholder interests or even to increase organizational accountability. Instead, it entrenched an opaque form of executive control over appointments entirely out of step with international trends. In short, the new appointments politics in Eswatini is not easily explained by the domestic pressures highlighted by political science. But nor is it a direct consequence of the new orthodoxies and diffuse social pressures analyzed in this article.
After 1945, British colonial rule in Swaziland initially strengthened, rather than undermined, monarchical authority (MacMillan Reference MacMillan1985, 649–58). During independence talks, however, it attempted to impose a constitutional monarchy similar to that of the United Kingdom itself (Dlamini Reference Dlamini2019, 129–233). As happens so often elsewhere, these arrangements soon produced political “kickback.” Swaziland’s 1968 independence constitution was to prove almost as short-lived as Lesotho’s. “Traditionalists,” who had never embraced constitutional monarchy, were outraged when non-royalists were elected in the 1973 elections. A (white South African) Court of Appeal bench then compounded executive displeasure by refusing to disqualify these candidates on citizenship grounds (Baloro Reference Baloro1994, 25). The Judicial Service Commission was abolished and only reintroduced for appellate appointments in 2005. Footnote 40
Informal appointments mechanisms survived this early turbulence but always only in the shadow of executive displeasure. Rulings subjecting royal authority to law, even in politically inconsequential cases, have been enough to provoke royal anger. Political interference in appointments, therefore, did not follow from the “judicialization of politics” as conventionally understood. In November 2002, for example, an (all white) South African appeal court bench frustrated royal interests in a land dispute and declared a royal decree making fraud a non-bailable offence unconstitutional. The government accused it of being influenced by “forces outside” Swaziland. The court refused to sit for three years until the government relented (Amnesty International 2004, 21–23; Tebbutt Reference Tebbutt2016, 209–15). By this time, however, a new constitution had been introduced. This highly unorthodox document created a seven-person JAC entirely composed of royal appointees (which met in the royal palace) and stipulated pointedly that foreigners would be ineligible for appointment as of 2012. Overall, this “new dispensation … simply entrenched” the “exorbitant powers exercised by the King” (Fombad Reference Fombad2007, 108).
In practice, this new JAC system has not served to formalize judicial selection. In 2014, the High Court refused a challenge by the Law Society to the unconstitutional appointment of one unqualified appellate justice. This decision was made on the grounds that neo-traditional understandings of Swazi custom forbade any inquiry into the king’s actions (compare Booth Reference Booth1983, 45–46). His was “the mouth that does not lie” (umlomo longacali manga), and all other constitutional text was irrelevant (Dube and Nhlabatsi Reference Dube and Nhlabatsi2016). Defenders of judicial independence among the legal profession were not able to resist this assertion of royal prerogative. Chief Justice Ramodibedi, who was still also heading the Court of Appeal in Lesotho, played a “reprehensible” role in defending royal interests, at least according to the International Commission of Jurists (2016, 5). According to section 157(1) of the 2005 Constitution on localizing appointments, Ramodibedi’s own term in office, in fact, should have already come to an end.
More recently, the Ugandan Benjamin Odoki has been recalled to the Supreme Court of Eswatini, despite himself being well past retirement age. These and other failures to observe formal process have been regularly denounced by international agencies and local civil society organizations but to little avail (see, for example, Maseko Reference Maseko2020). The new system has made some show of organizational accountability—for example, since 2015, some interviews have been held in public (Ndzimandze Reference Ndzimandze2015). In practice, however, it has remained “an affair between the … Chief Justice and the King, shrouded in secrecy and conducted without any form of oversight” (International Commission of Jurists 2016, 23). Moreover, any public confidence created by this appearance of transparency has been undermined by the chief justice’s claims that the JAC is under pressure from a “treasonous political elite” bent on regime change (Dlamini and Ndzimandze Reference Dlamini and Ndzimande2019). Eswatini’s senior judiciary is now, finally, descriptively representative, at least in racial terms. The BLS region’s first all-Black appeal court bench sat in 2012 (Simelane Reference Simelane2012). Appointments of women, by contrast, remain unusual.
CONCLUSION
The informal appointment of appellate judges in the BLNS region was an imperial relic. Perhaps unsurprisingly, it did not long outlive the dramatic formalization of appointments in South Africa itself. Unlike in South Africa, however, the judicialization of politics in these jurisdictions has not generally been accompanied by increased pressures for formal political accountability or for more political representation on JACs. There is little evidence for the timeless “independence-accountability paradox” identified by political scientists. Specific forms of (organizational) accountability and (descriptive) representation, however, have become central components of international best practice, alongside the “new orthodoxy” of merit selection (Garoupa and Ginsburg Reference Garoupa and Ginsburg2015, 99). This composite, unstable orthodoxy has done much to shape the increasingly formal regimes that ostensibly govern appellate appointments in the region.
There is, to be sure, significant variation between cases. Local social, economic, and political pressures account for the differing speeds with which the old world of informal appointments collapsed in the BLNS region. In Namibia, both localization and formalization have been more gradual affairs, despite judicialization. In Lesotho, one informal system, organized through South African networks, was replaced with another informal system almost overnight. Formalities have been largely externally imposed. Judicialization in Lesotho has been an important catalyst. In Botswana, meanwhile, gradual change was greatly accelerated by the emergence of organized interests and industrial militancy: forms of social change invisible to any narrowly political research agenda. In Swaziland/Eswatini, finally, a localized and (notionally) transparent regime emerged after judicial rulings that did not so much judicialize politics as merely assert the principle that royal authority was subject to law.
International explanations are, however, ultimately more compelling than domestic ones. The “BLS” grouping includes a consolidated democracy (Botswana), an unstable “neo-patrimonial” country (Lesotho), and an absolute monarchy (Swaziland/Eswatini). Yet, in all three cases, the old world of appellate appointments died a sudden death in the space of a short decade (2005–15). Constitutional provisions governing judicial appointments, it is true, have recently become fiercely contested elsewhere in Africa (for Kenya, see Rickard Reference Rickard2021; for Zimbabwe, see Verheul Reference Verheul2021, 194–96). It might be tempting, therefore, to understand this development as part of a more specifically African “institutionalization of political power,” where violence has become gradually displaced as a means of resolving political disputes and leaders have become habituated “to achieve their goals by working through, not around, formal institutional channels” (see, famously, Posner and Young Reference Posner and Young2007, 127). Yet, nowhere in the BLS region, at least, is there any good evidence for such pacific trends. If anything, worryingly, the opposite is true (see, for example, Deleglise Reference Deleglise, McNamee and Muyangwa2021, 223–26; Maphalala Reference Maphalala2021; Ookeditse Reference Ookeditse2021). In Botswana, meanwhile, institutionalized politics has a much longer history (for example, Charlton Reference Charlton1991). In every case, moreover, local campaigns for reform have been justified using a new international vernacular inflected with accents from South Africa, the regional hegemon. This new language marries judicial independence with an emphasis on judicial representativity and accountability to “profane” audiences. It has made the secret self-selection of foreign judges—notably, men from South Africa’s white minority—harder to justify.
These diffuse international pressures originate from beyond law and politics. Sociologists have long documented the demise of collegial authority in other professions. This development has simply come late to the senior judiciary in Commonwealth countries. For a time, some judges and theorists could hope the law would escape these democratic changes. In an “increasingly conflictual society,” Robert Badinter (Reference Badinter, Badinter and Breyer2003, 9–10; emphasis in original, author’s translation) once suggested, “traditional moral authorities … have become discredited.” “Only judicial power escapes this shipwreck,” combining the role of “sphinx” and “prophet” to become a new “secular papacy.” Any such hopeful expectations were, however, always doomed to disappointment. As one former president of the United Kingdom’s Supreme Court has argued, “the public should be able to feel that … their cases are being decided and the law is being made by people like them, and not by some alien beings from another planet.” This, she rightly insists, is a feature of a “modern world, where social deference has largely disappeared” (Hale Reference Hale2014, 4). New appointment orthodoxies have thus much deeper roots than any particular political circumstance or donor delusion.
