Protecting Apex Courts from Capture

In an era of growing threats to democracy worldwide, the independence of apex courts has emerged as one of the critical fault lines. Across regions—including in countries long considered stable democracies—we are witnessing a new, more insidious pattern of democratic decline. Increasingly, elected leaders seek to consolidate power not through military coups, but through more subtle forms of institutional co-optation and manipulation. A common early target in this process is the judiciary—and in particular, the apex courts that stand as the final guardians of constitutional rights and the rule of law.

Apex courts—a general term referring to the highest court or courts with authority over constitutional matters—increasingly struggle to assert their independence amidst growing tensions with executive powers that continue to erode their authority, in a phenomenon widely understood as “judicial capture”. One of the most effective tools for such capture is the manipulation of judicial appointment processes—enabling ruling elites to install loyalists, marginalise independent voices, and weaken the court’s ability to check power.

Structural Distinction of Apex Courts

While numerous national, regional, and international frameworks exist for the selection and appointment of judges more broadly, none have focused specifically on the distinctive role and character of apex courts.

Yet these courts are fundamentally different from all other branches of the judiciary for various reasons: (i) their rulings on constitutional matters are final and can only be overturned by the court itself in future cases or through constitutional amendment; (ii) apex court judges are often the most visible members of the judiciary, meaning that public perception of the entire judicial system is frequently shaped by their conduct and decisions; (iii) these courts routinely adjudicate politically and socially consequential disputes—including cases involving fundamental rights and the legitimacy of elections—which makes them especially vulnerable to political pressure; and (iv) unlike lower courts, apex courts decide cases collectively, either in plenary or panel format.

Moreover, apex courts play a unique role in shaping constitutional jurisprudence that influences not only the litigants before them, but also the legal profession, public institutions, political actors, and society at large. They also operate under intense public and media scrutiny and provide normative leadership across multiple audiences simultaneously.

Initiative on Apex Court Appointments

Against this backdrop, in 2021, the Institute for Integrated Transitions (IFIT), in partnership with Constitutional Transitions and a High-Level Advisory Panel composed of distinguished judges and jurists from diverse legal systems, launched the Initiative on Apex Court Appointments: the first-ever global effort to articulate a set of guiding principles for the appointment of judges to apex courts.

These principles—which culminated in the Constitution Hill Global Guidelines on Apex Court Appointments (“The Guidelines”)—are intended to function as voluntary guidelines (soft law), offering countries a flexible framework that can be adapted to specific national contexts when designing or reforming processes for the selection of judges to apex and constitutional courts.

The Initiative originated in Southern Africa, grounded in early work by IFIT’s Zimbabwe Resource Group, and drew on a wide range of sources, including: (i) a detailed IFIT study of existing global and regional principles on judicial appointments and judicial independence; (ii) a comprehensive survey of national standards; and (iii) in-depth interviews conducted with the initiative’s High-Level Panel members and with additional judges and jurists globally.

This process culminated in a high-level legal summit at Constitution Hill in Johannesburg in May 2024, where the final version of the Guidelines was formally presented and discussed. Developed through inclusive and interdisciplinary engagement, the Guidelines provide a principled yet adaptable framework to safeguard the independence, impartiality, and integrity of apex courts. They lay out robust criteria for judicial appointments, promote transparent and participatory selection procedures, and set minimum standards for judicial tenure and service—all aimed at shielding apex courts from political capture and ensuring their role as a cornerstone of constitutional democracy.

Symposium on Constitution Hill Global Guidelines on Apex Court Appointments

This symposium brings together leading legal and judicial voices to explore the application and significance of the Guidelines in today’s increasingly fragile democratic environment.

In the first piece, Justice Catherine O’Regan (former judge of the South African Constitutional Court, inaugural Director of the Bonavero Institute of Human Rights, and member of IFIT’s Apex Courts High-Level Advisory Panel) reflects on the central—but often overlooked—importance of judicial appointment processes in upholding democratic resilience. She situates the Guidelines within the wider phenomenon of executive aggrandisement and democratic backsliding, where apex courts are frequently the first institutional targets. Drawing on examples from around the world, she illustrates the variability—and vulnerability—of existing appointment systems. She then outlines how the Guidelines respond to this gap by proposing clear criteria and procedures to ensure judicial independence, transparency, and integrity.

In the second piece, Professor Carlos Bernal (First Vice-President of the Inter-American Commission on Human Rights, former Justice of the Colombian Constitutional Court, and Professor of Law at the University of Dayton and La Sabana) offers a normative and transitional justice–oriented defence of the Guidelines. Using Mexico’s 2024 judicial reform as a case study, he explores how autocrats attempt to weaken courts through reforms to appointment systems. He highlights how the Guidelines set a universal baseline for protecting the structural and institutional role of apex courts. At the same time, he argues that legal safeguards alone are not enough—factual judicial independence also depends on judges’ character and the broader political culture. In contexts of transition, Bernal stresses, robust appointment standards are especially vital to ensure legitimacy and constitutional transformation.

In the final piece, Maître Mohamed Fadhel Mahfoudh (former President of the Tunisian Order of Lawyers, member of the Nobel Peace Prize–winning Tunisian National Dialogue Quartet, and member of IFIT’s Apex Courts High-Level Advisory Panel) presents a sobering case study of Tunisia’s repeated failure to establish a constitutional court. Despite constitutional mandates and reform efforts, flawed and politicised appointment procedures have kept the court from coming into existence—undermining constitutional oversight and democratic progress. Reflecting on his role in the Guidelines’ development, Mahfoudh underscores their potential to foster constructive debate and serve as a practical tool for countries seeking to overcome appointment gridlock. His essay demonstrates how even well-designed institutional frameworks can fail without credible, independent, and implementable appointment systems.

At a time when the quality of judicial appointments can determine whether democracy erodes or endures, the reflections in this symposium could not be more timely. The Guidelines are not a rigid blueprint, but rather an invitation to structured, informed debate. We hope that the ideas shared here contribute to strengthening apex courts—and, with them, the democratic systems they are meant to uphold.