The impact of the process of appointing judges on judicial independence : a comparative study of Zimbabwe and South Africa

Abstract

Judicial independence is a critical component of democracy especially in Africa’s emerging democracies. Democratic governance can only be attained if the judiciary functions independently. The selection and appointment of judges is of paramount importance to the quality and independence of the judiciary. This dissertation examines the process of appointing judges based on the premise that this fundamentally impacts judicial independence in Zimbabwe and South Africa. South Africa and Zimbabwe adopted new constitutions after their respective independence albeit in different years and in response to myriad exigencies. The comparative examination of these two jurisdictions seeks to explore and assess judicial independence and how this concept can be encouraged and secured in order to foster democracy and the rule of law. The dissertation examines judicial independence from a South African perspective and also when viewed through a Zimbabwean prism. Components of judicial independence which are institutional independence and personal independence and their characteristics will be discussed. The study also examines the weaknesses or challenges threatening judicial independence in these countries. The aim of this paper is to analyse how judicial independence can be strengthened in South Africa and Zimbabwe with a view to nurturing democracy given the concept’s centrality to the smooth functioning of any modern state. The process of appointing judicial officers sits at the core of promoting judicial independence. To help unpack this notion, the study further examines the constitutional and legislative frameworks governing judicial appointments in these two jurisdictions. Further, the dissertation also discusses the appointment processes in the two jurisdictions and exposes gaps or weaknesses in their appointment processes. The study reveals that although the executive is critical in the appointment of judicial officers there must be a boundary prohibiting political influence permeating the appointment process in order to enhance judicial independence. The dissertation concludes by giving recommendations to address identified weaknesses or gaps in the appointment processes and how each jurisdiction may learn from another in its quest for an independent judiciary which as stated herein is fundamental in endorsing constitutionalism and the rule of law.