Special Processes for the Reassessment and Removal of Judges in 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?

From 'de-Nazification' to 'de-Communisation', a wide variety of transitions have included special processes for screening the judiciary, such as vetting, lustration, competitive reappointment processes and truth commission inquiries.

This project uses a comparative methodology to analyse special processes and examine whether, and if so how, they can be designed to strengthen the Rule of Law. At the heart of the project are case studies commissioned from experts with insider knowledge of a country's judicial reforms. The project team will draw on these case studies to build a wider typology of special processes and develop policy recommendations on good practice, if any.

The project findings will be used to review applicable international standards. We will examine whether general normative statements on judicial independence and transitional justice require modification. Case studies for this project include Argentina, Chile, the Czech Republic,  El Salvador, Estonia, Guatemala, Germany, Hungary, Kenya, Pakistan and South Africa.

This project was funded by UK Arts and Humanities Research Council grant AH/R005494/1 .

The core team consists of Dr Jan van Zyl Smit (Principal Investigator) and Dr Sara Razai (Project Research Fellow) at the Bingham Centre, and Professor Christina Murray of the University of Cape Town (Co-Investigator), who is Senior Adviser on Constitutions and Process Design, UN DPA Mediation Support Unit.