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Effective Judicial Selections and Appointments

Judge Sanji Monageng, International Criminal Court

The effectiveness of any judiciary depends upon its perceived legitimacy, especially in the eyes of the public. This perception requires not only that the judges uphold the highest standards of integrity and independence, but also that States respect judicial independence and do not undermine judicial decisions.

A successful judiciary is one whose members are appointed following a rigorous process assessing both the candidate's legal qualifications as well as integrity. Different countries' constitutions and other laws provide for different requirements, but it is crucial that only the best people are appointed to judicial positions. Judiciaries should not be politicized - this means that ruling parties should not appoint judges who will be answerable to them and not to the constitution and members of the public.

It is also crucial that the judicial service commissions, the bodies responsible for conducting such interviews and recommendations, must be sufficiently independent as well as sensitive, for instance to issues of gender.

As a judge formerly practising in various jurisdictions across Africa, I subscribe fully to the endeavour of the Southern African Chief Justice Forum to create Best Practice Guidelines for Judicial Selection and Appointment of Judges. This is a noble exercise, which if adopted would stand these countries in good stead.

Such adoption will, however, not amount to much if the Guidelines are not implemented effectively. This then leads us to question how to maximize the success of these efforts. Regarding implementation, it is my opinion that States must make specific and measurable commitments. Those commitments must be monitored:

- at the national level through, for example the establishment of independent internal monitoring bodies,

-through the Periodic Reports that the States Parties submit to the African Commission on Human and Peoples' Rights every other year,

-and through the Special Procedures reports to the United Nations Human Rights Council.

With respect to monitoring, States will have to work hard to find ways to change the present mindset, because in most countries the executive plays a far too dominant role in the selection and appointment of judicial officers, and it might not be easy to get the executives to buy-in to a monitoring system.

Additionally, if the Guidelines are to be implemented, funding will be required to train officials. To create the required independence and oversight for successful implementation, plans must be realistic and take into account the economic difficulties and realities in different countries. For example, there exist divergent approaches which States have adopted in the vetting of judicial candidates, and while vetting is desirable, some steps may be unnecessary and even superfluous given their incremental costs.

Finally, it is important to mention that individual countries' judiciaries are responsible for training judges who might be appointed to international and regional courts and tribunals. Consequently, these courts, with very high standards, look to the domestic courts for highly qualified judges when seeking nominations and appointments. This provides all the more reason why standards at the domestic level should also be high.