The Judiciary in the Context of Constitutional Transitions - Workshop

The Bonavero Institute of Human Rights is co-hosting with the Bingham Centre for the Rule of Law an invitation-only workshop on Reassessment and Removal of Judges in the Context of Constitutional Transitions.

Societies in transition to constitutional democracy face a difficult choice when their courts are staffed with judges from a period of conflict or authoritarian rule. Should the existing judiciary be given security of tenure - the standard protection for judicial independence - or instead face a special process that will examine their past and possibly lead to the removal of those judges who are considered unwilling or unable to serve with integrity and competence in the new era? This workshop will examine the choices countries make and their implications for the rule of law.

From 'de-Nazification' to 'de-Communisation’, a wide variety of transitions have included special processes for screening the judiciary. Many examples can be found in Europe and also in other regions of the world, such as the large-scale vetting of judges in Argentina and more recently Kenya. However, not every transition has seen judges replaced. For instance, South Africa and Chile became constitutional democracies while retaining their judges, albeit with truth commissions providing some scrutiny of the judiciary's track record. These have often been, and sometimes still are, intensely controversial decisions. An obvious area of controversy pertaining to the rule of law concerns the risk of legitimising political interference in the courts, which has become a live issue again in contemporary Europe.

The workshop will discuss 10 case studies by country experts from Africa, Europe and Latin America, in which they examine special processes such as lustration, vetting, competitive reappointment and truth commission inquiries. We will also deliberate on whether international standards relating to the judiciary need to be supplemented to provide more guidance for situations in which processes are being contemplated, designed or implemented.  

This workshop has been organised jointly with the Bingham Centre for the Rule of Law, as part of a research project at the Bingham Centre funded by the Arts and Humanities Research Council through Research Grant No AH/R005494/1. Any queries about the project should be directed to the Principal Investigator, Dr Jan van Zyl Smit, at the Bingham Centre.