21 - Importing Justice

Summary

This chapter examines the appointment of foreign judges through the lens of political contestation and potential judicial interference in Botswana, Lesotho and Eswatini. It first interrogates why the appointment of foreign judges continued after domestic pipelines of judges had increased. Adopting a regime-based approach, the chapter first argues that the continued appointment of foreign judges beyond functional necessity is a form of strategic policy drift, because it does not require a new policy and it may be couched in positive or populist terms. Second, this chapter examines the timing of the pivot away from the appointment of foreign judges in Botswana and Eswatini. It shows that judicial leadership combined with local demand plays an important role in the timing of change, but that the localisation of appointments to apex courts of appeal, without reform of the appointment process itself, provides democratic window dressing for hegemonic regimes. The rhetoric around citizen-based localisation (Botswana) or racially-based Africanisation (Eswatini) has a populist flavour which may provide cover for varying degrees of autocratic behaviours.