Informality in international judicial appointments: Who gets on the bench of sub-regional courts in Africa?

Recent scholarship on judicial politics in the Global South has highlighted the relevance of informal judicial networks and relations as a prerequisite for protecting judicial autonomy and independence (e.g. Trochev and Ellett 2014; Dressel, Sánchez Urribarrí and Stroh, 2017). Likewise, such informalities feature in, and influence, judicial appointments in hybrid regime settings. For instance, studies from Africa highlight the complex entanglements that informal and personal relations pose to processes of judicial appointments to national courts (Adouki 2013; Fombad 2014; Roux 2016). To date, however, there is no systematic work on judicial appointments to African national or sub-regional benches. Our paper seeks to contribute to the emerging literature by examining the informal aspects of judicial appointments to African sub-regional courts. To conceptualise the governance and patterns of judicial appointments, we use an originally compiled dataset comprising all 98 judges who serve(d) on the four operational African Union (AU) sanctioned Regional Economic Community (REC) courts since their establishment (Court of Justice of the Common Market for Eastern and Southern AfricaCourt of Justice of the Economic Community of West African States, East African Court of Justice, and Southern African Development Community Tribunal). The dataset provides systematic insights into the professional trajectories and backgrounds of the appointees. We also draw on interview material to divulge the informal dimension of the appointment processes whilst accounting for variations in informality across the different regime types. We will show that the formal selection rules are particularly thin, leaving a lot of leverage to informal processes at various levels of governance. We, therefore, argue that appointments will tell us at least part of the informal selection story from two angles: the merits, ties and efforts that enhance the chances of individuals getting selected as well as the appointers’ strategies and criteria for selecting specific individuals from a larger pool of candidates. The importance of informality in judicial appointments cannot be overemphasized as it reveals the concealed entanglements between the personal and political nature of international and national judiciaries alike. Therefore, an analysis of the informal aspects of judicial appointments to sub-regional courts in Africa ought to broaden our understanding of the construction of judicial power and autonomy of some of the key players in regional politics. Most significantly, we foreground rarely researched judiciaries of African RECs – which are positioned between complex, often opposing, and fragile processes of national sovereignty and regional integration politics – and render them accessible to scholarly enterprises.