Freedom Under Law supports call for President to urgently fill ConCourt vacancies

15 December 2021

Freedom Under Law supports the call by the Acting Chief Justice for the President to fill the vacancies on the Constitutional Court without further delay.

In previous public statements, FUL has warned against the harmful effects of drawn-out failures to appoint permanent members of the country’s highest court. The consequence has been that for several years, a series of acting members of the court have in effect served at the personal choice of the Chief Justice, as and when he has decided. Drawn from the lower courts, some have been accomplished judges. The basis on which others have been chosen has, however, not been apparent. Yet at times they have played a decisive role in determining whether a judgment is a judgment of the Court, or simply a minority judgment.

Disunity, open friction, and long delays in delivering judgments have become matters of record and public concern. Leadership and judicial example are expected from the top court. Instead, there has been little, made worse now by the President’s apparent temporising.

The deplorable recent record of the Judicial Service Commission has itself contributed greatly to the present crisis – because crisis it is. There can be no doubt that able potential candidates are held back by the spectacle of a public mauling by political representatives and those who side with them, unconstrained by any clear criteria for appointment and with little or no control from the chair.

The JSC itself, as a consequence, has had to concede the setting aside by the High Court of its previous interviews of Constitutional Court candidates. Yet on a rerun procedure it adhered to its original choice. Its exclusion, as one of four nominees to be at least considered by the President, of Judge David Unterhalter has rightly evoked wide condemnation.

This state of affairs is now compounded by the President’s delay and apparent indecision in filling not only the Constitutional Court vacancies, but the Chief Justiceship itself. His resort as regards the latter, to appointing a panel of advisers, helped little. In a prior statement FUL expressed its incomprehension as to how that panel itself had come to be composed, including as it did no serving judge, no leading figure in the legal profession but a senior party-political functionary and a polemicist.

While wishing the President a speedy recovery from Covid, we remind him that he has clear constitutional duties. He needs to fulfil them without further delay.

Issued by Freedom Under Law, 15 December 2021