CONSTITUTIONAL COURT INTERVIEWS 2020: Specialized Court without Specialized Judges?

The Judicial Service Commission (JSC) held interviews for Constitutional Court judges on 28 September 2020. This will enable formal separation of the Supreme Court from the Constitutional Court. The 2013 Constitution provided a seven-year transition in which Supreme Court judges doubled as the Constitutional Court panel. In spite of the arduous and at times rigorous interview process, it is highly likely that the five acting judges of the Constitutional Court will simply be made substantive. This has significant implications on the court's jurisprudence.  

The interview process was profoundly technical and challenged candidates on their knowledge of procedural requirements, substantive law and institutional design. It was clear that the judges were, without exception, more comfortable in the procedural realm as opposed to the substantive questions of legal rationale. They could more easily state the correct procedure, but struggled to account for why it exists. In other words, they are decidedly positivist. Similarly, they were very uncomfortable with abstract concepts such as the rule of law, constitutionalism and judicial activism. It was only Justices Hlatshwayo and Zhou, who both have deep backgrounds in academia, that were reasonably comfortable in this area. Justice Hlatshwayo particularly flourished through his insistence on turning the adversarial and examinatory proceedings into exploratory discussions on law and judging. It must be recalled that most of the candidates were trained in the 70’s. Contemporary discussions on theoretical foundations of law and politics cannot be presumed to permeate judicial institutions. As Justice Gowora put it, they neither have the time nor freedom to be part of the relevant trainings. Further, one can only be an entry level judge upon attaining the age of 40. Thus, by the time one seeks higher office, the training from law school may no longer be congruent with contemporary notions of constitutional adjudication. 

Even though the Constitutional Court sounds like a specialized court, ideally staffed by experts, it will likely be a court of generalist career judicial officers, no different from an equivalent common law Supreme Court.  This is why Justice Zhou faced rigorous questioning regarding his experience, having only sat on the High Court for eight years. Justice Zhou premised his candidature on his rich background in constitutional law training. However, the Chief Justice questioned what was so special about Justice Zhou to warrant him skipping the Supreme Court, where his competitors have sat, and preside in the apex court. In other words, candidature to be a Constitutional Court judge has less to do with specialized training and more to do with relevant judicial experience. Certainly, the JSC Guidelines on the interview process place a premium on Legal and life experiences relevant to the position including judicial posts held... To that extent, the hierarchy of courts is based on seniority and not peculiar constitutional expertise. 

Those who felt the interview questions were too dense missed the attempt at presenting generalists judges as specialized constitutional adjudicators. The questions were an opportunity for career judicial officers to showcase their suitability for the narrow and specialized function of the Constitutional Court. This came to a head when they struggled to deal with concepts that lie at the heart of that constitutional function. Be that as it may, there were still many illuminating moments, the most important of which was when judges were asked what they would improve on the current constitutional court bench. Justice Garwe was refreshingly honest, noting that insistence on procedural rectitude was contrary to the constitutional requirement that these are kept to a minimum. As a result, many cases are not heard on the merits. Presented with the same question, Justice Makarau found no fault in the Court, remarking that it could only be improved by elevation of the level of representation by the lawyers. Whilst Justice Garwe showed the progressive and liberal approach in the 2013 Constitution, Justice Makarau stuck to the positivist approach of judicial perfection. Further, whilst Justice Patel noted that the Court might not be getting enough work, Justice Makarau made the contrary claim that judges were overwhelmed. It was also refreshing to hear Justices Patel and Gowora swat aside the issue of judicial capture, stating that judges should be able to take criticism and show independence through their work. 

Those who support interviews believe they enhance transparency. There is certainly value in hearing from judges outside the courtroom setting. However, the result might have been a foregone conclusion. The interviews were not highly subscribed with no nominees interviewed from private practice, civil society or academia. This might have been due to the realization of the high favourability of the sitting judges. Even in South Africa, where the first Constitutional Court bench had appointments from outside the judiciary, prior judicial experience is now pre-requisite for appointments. In the USA, there has neither been the nomination nor confirmation of a Supreme Court justice without prior judicial experience since 1971. 

 If the interview process was truly determinative, then Justice Zhou would be in with a shout. However, there is a high premium on judicial experience. As Justice Patel pointed out regarding strengths of the current bench, they have collegiality and have gathered the relevant experience since 2013. Chief Justice Malaba and Deputy Chief Justice Gwaunza were both appointed to their posts as the most senior judges. There is a strong norm which supports judicial appointments based on seniority. This certainly flies in the face of the interview process as influential in the appointment process, but is also important for comity and collegiality on the bench. The JSC Guidelines on the interviews do indicate that interview performance is only one factor to be considered in deliberations, with others being comments from the Law Society, from the general public and considerations of diversity and gender composition. Perhaps constitutional adjudication does not need specialized judges and constitutional law is like any other form of law which is within the competence of any judge. Nevertheless, in the context of an institution which is created to give specific visibility and protection to the Constitution, it does seem paradoxical to create a specialized court without specialized judges. The court lacks specialist lawyers, having judges also drawn from general practice. 

Interviews create expectations. they are an independent source of power. When ED sought to push Chiweshe, they were used by CJ to highlight strength of Malaba. Chiweshe knew this, so he did not attend interviews. They were meant to also parade the in coming judges. The power of the JSC to make their preferred candidates look good. 

This means the Constitutional Court will not be a new and dynamic guardian of the Constituion. Rather, it will be a new Supreme Court by another name.