Policy think tank the Centre for Development and Enterprise (CDE) said on Tuesday that the Government of National Unity (GNU) needs to act speedily to preserve and strengthen the country’s judicial system, noting specifically that the quality of the commissioners serving on the Judicial Service Commission (JSC) needs to be improved.

In a webinar on ‘How to appoint a strong judiciary’, CDE CEO Ann Bernstein pointed out that the JSC “cannot be allowed to descend again into a mechanism for calculations of political advantage, and mechanistic applications”.

The 23-member JSC was established in terms of Section 178 of the Constitution and advises national government on any matters relating to the judiciary or the administration of justice. It interviews candidates for judicial posts and makes recommendations for appointments to the bench, as well as handles complaints against judges.

Bernstein said the quality of the appointments to the JSC mattered and could be hugely influential.

“By addressing issues threatening the selection, effectiveness and independence of the country’s judges we will be strengthening the rule of law, which in turn underpins the country’s ability to deal with crime and corruption, as well as efforts to fix the State,” she said.

She explained that bolstering the rule of law would create the underlying conditions required to raise investment, growth and employment levels, all of which were critical elements of inclusive growth.

“An effective judiciary is not a ‘nice to have’. It is critically important for the country’s future. It underpins the hope of getting the growth and inclusion we desperately need. There can be no rule of law without an effective and independent judiciary to enforce the law. Rules without proper and impartial enforcement do not endure,” Bernstein stated.

While the judiciary had demonstrated independence, she noted several risks, including what she said was the declining quality of judicial appointments.

“The institutional importance of this cannot be overemphasised. Law is often complex. Cases are fought by way of public contestation. The rules of engagement call for judges who are fair, firm, efficient, cogent in their reasoning, and able to deliver written judgments without undue delay. Judges who do not meet these criteria (and who lack the required competence and application) should not be appointed to the bench. However, all too often, the JSC – the Constitutional body tasked with selecting fit and proper persons for appointment – has not chosen wisely,” she alleged.

She said the judiciary should attract to its ranks lawyers who had excelled in their practice, but said, unfortunately, the JSC had engaged in judicial selection that had weakened the judiciary over the years.

Bernstein highlighted that the JSC’s procedures required reform, noting procedural shortcomings at the JSC.

She explained that firmer leadership of the JSC was also needed to prevent “wayward decision making”, saying this highlighted a further aspect that required correction.

The CDE wants the JSC to have better support and researchers who can help prepare its commissioners for interviews and deliberations and also suggested revisiting the composition of the JSC.

The judiciary also needs to be properly resourced, as the CDE believes there are “important warning signs of trouble brewing now” and into the future in terms of the quality of appointments.

Meanwhile, the CDE noted that members of the National Assembly and the National Council of Provinces must be “required to apply their minds independently, in the national interest and not party interest”, to the suitability of nominees for appointment to the JSC and must be held to account in doing so.

Bernstein said candidates for judicial office must be evaluated objectively and only with reference to the Constitutional requirement that they be “appropriately qualified” and “fit and proper” persons for appointment, though with consideration of the need for a judiciary broadly reflecting the racial and gender composition of the country.

She added that the JSC must be properly led to adhere to appropriate and proper exercise of duties and to ensure that clear and public selection criteria were rigorously applied in the evaluation of candidates for judicial appointment.

The JSC should adopt a code of conduct to regulate the behaviour of its members during interviews with the aim of ensuring a fair, courteous and even-handed process, she suggested.