Notwithstanding a number of well-reasoned comments about the startling omission of women candidates for the vacancy at the Constitutional Court following the retirement of Justice Zac Yacoob, the Judicial Service Commission has gone ahead and short-listed the five men who applied for the position.
As a consequence, the JSC will be required to recommend to the president four of the five candidates: Selby Baqwa, Lebotsang Bosileo, Brian Spilg, Jeremy Gauntlett SC and Mbuyiseli Madlanga SC. The president will then make an appointment from that list.
The JSC could have decided to defer the short-listing and advertise again, calling for female judges and senior lawyers to make themselves available. From what can be gleaned from the JSC, it appears the decision was made to continue with the short-listing process because, in its view, all five nominees were sufficiently qualified to be appointed to the highest court in the country. Hence it could hardly be argued for the appointment process to be deferred once five qualified candidates were available and the JSC was only required to choose four for consideration by the president.
Assume for the purposes of argument that five white judges had been nominated and that, for whatever reason, no black judge or senior lawyer had accepted nomination. In this case, would the JSC have made the same decision and gone ahead, notwithstanding the obvious lack of diversity among the candidates? The answer must surely be: highly unlikely! So why, when gender is the missing factor, is the problem not equally obvious? Sadly, it appears that, for all the talk of the imperative of strict compliance with section 174(2) of the Constitution (that the judiciary must broadly reflect the racial and gender composition of the country), when it comes to gender only lip service is paid.
We are now almost 20 years into our constitutional venture. Under former president Thabo Mbeki, the Constitutional Court had three female justices. Despite two opportunities to appoint at least one more, President Jacob Zuma has declined.
This time, he will not have the opportunity, though it is constitutionally possible that he could reject the four names and request that the process recommence so that the JSC can add to the list. In such a case, he could reason that there has not been full compliance with section 174(2) in the light of an absence of even one female judge or senior lawyer.
This unfortunate situation raises two further issues. In 2009, more than 20 nominees made themselves available for what were then four Constitutional Court vacancies. On that diverse list were some of the most distinguished jurists in the country. It is disturbing that almost all of the unsuccessful candidates are now absent from nomination duty.
Could it be that the conduct of the JSC in 2009 – when, after three days of complex hearings, it took no more than 20 minutes to deliberate on its list – has deterred most of these and other candidates?
In addition, female jurists may well have been persuaded, after two nomination processes in 2009 and 2012, that the president is reluctant to appoint more women to the court.
Whatever the reason, it is deeply worrying that a vacancy in this court elicits such a tepid response from the legal community.
The second issue is whether any judge, of whatever rank, seniority or record, can claim to be worthy of appointment to the Constitutional Court. Logic surely dictates that a person can be a competent magistrate or high court judge but is not necessarily good enough to be appointed to a higher court. The aim should be to ensure that the very best candidates staff that court. Agreed, the test for what constitutes the best is a contested one: technical competence, experience, knowledge of specialised areas required by the court, a transformative vision of a South African legal system congruent with the values of the Constitution – all will be factors to be considered.
It would be interesting to read the JSC's reasons for how these five meet the criteria. Frankly, the future looks bleak if we can truly say that this list, save arguably for two nominees,
represents the best we can demand for so critical an institution. Of course, the JSC can argue that it cannot railroad candidates into making themselves available. But the present situation provokes reflection on how to ensure that a greater pool is available to promote both diversity and legal transformation.