The Initiative on Apex Court Appointments

An apex court is the highest court on constitutional matters in a given country. It may be a supreme court, a constitutional court, or something else – depending on the legal system.

Across very diverse jurisdictions, apex courts have a combination of distinguishing features that merit a tailored approach for judicial appointments. For example: 1) they constitute the highest court on all constitutional matters in a particular country, 2) they are multi-member courts that adjudicate in plenary or in panels, and 3) they deal regularly with politically charged cases that have foundational consequences for democracy, human rights and the rule of law in the country. A number of national jurisdictions reflect some of these features in their appointment criteria and procedures on apex court appointments.

Existing principles, although valuable, have two limitations: 1) they tend to focus overwhelmingly on rules of procedural fairness and questions of individual merit, largely omitting criteria of character; and 2) they are generic in application and thus do not take account of the special considerations that pertain to the appointment of judges to apex courts.

The global gap this initiative seeks to fill was first identified through prior work conducted by IFIT and CT with expert input from a group of retired and active apex court judges from the Southern African region, as well as several distinguished lawyers from IFIT’s brain trust in Zimbabwe. In choosing to fill the gap in principles for apex court appointments at both global and regional levels (with Southern Africa as the initial regional case), the initiative seeks to ensure that the principles: 1) cater to the unique needs and dynamics of different regions; 2) facilitate a continuous ‘conversation’ between organisations, governments and experts working at international and regional levels; and 3) can be practically incorporated by states into their laws, constitutions and/or national processes.

IFIT experts, in partnership with CT, have been facilitating the development of the principles with the support of a High-Level Advisory Panel composed of distinguished judges and jurists from a wide spectrum of legal systems. Yale Law School and the law firm King & Spalding LLP have provided pro bono research support. The Effective Institutions Project has provided financial support.

The final version of the global guidelines will be published in September 2024. The version (or annex) tailored to the Southern African region will be published at a later date.

To learn more or offer your support for the Initiative on Apex Court Appointments, please contact Alejandro Urrutia at [email protected].