The New Politics of Judicial Appointments in Southern Africa

Abstract

Political scientists analyze the global rise of judicial appointment commissions as a response to judicialized politics. They argue that appointment processes have formalized to include more constituencies now affected by judicial decisions. This article presents evidence from Southern Africa confounding their expectations. In this region, formalization has social as well as political origins. Over the last two decades, the senior judiciary has suddenly become subject to the same demands for organizational accountability and descriptive representation that sociologists of other professions have been documenting for decades. Throughout the region, therefore, it has become increasingly difficult to defend opaque practices inherited from British (and South African) colonialism. Twenty years ago, Namibia, Botswana, Lesotho, and Swaziland/Eswatini all recruited most appellate judges from abroad through informal channels. In every country, this system has come under pressure from a variety of local sources. Yet those demanding reform have always been able to mobilize new international orthodoxies that require the judiciary to represent its society and make itself accountable to profane, external audiences. These new orthodoxies have acquired an unusual power in Southern Africa thanks to their embodiment in South Africa’s own post-apartheid transition, and long-standing moral imperatives to “localize” senior expatriate positions in postcolonial states.