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Assembly will assess the allegations against the holder of a public office. Accordingly , the National Assembly adopted Rules for removal of Office-Bearers in Institutions Supporting Democracy (the Rules) ,21 on 03 December 2019. 81. These Rules , inter alia , provide for the appointment of an Independent Panel established by the National Assembly to conduct a preliminary assessment into a Section 194 enquiry (the Independent Panel) 22 in order to determine whether there is prima facie evidence to show that the holder of a public office committed misconduct, is incapacitated or is incompetent. 23 Per the Rules, the Independent Panel submits its recom mendations to the Speaker, who then tables them before the National Assembly .24 Based on this recommendation , the Assembly takes a decision on whether to proceed with a Section 194 enquiry, and in the affirmative refers the matter to a Committee for formal enquiry. 25 82 . The main contention in this Communication is the appointment of a Judge to serve as a member of the Independent Panel which was established to assess whether the Victim should be removed from office. It is alleged that the appointment of a Judge to the Independent Panel violates the principle of separation of powers, in particular judicial independence. 83. In this regard , the Commission observes that the alleged violations of Articles 7(1) and 26 of the African Charter are both premised on the argument of a violation of the principle of separation of powers , in particular judicial independence. In its jurisprudence, the Commission has held that the independence of the judiciary is related to the doctrine of separation of powers; 26 the independence of the Judiciary being enshrined in Article 26 of the African Charter. 84. In view of th is, at the outset the Commission will determine whether Article 26 of the African Charter has been violated , and the other violations thereafter. Violation of Article 26 of the African Charter 85. Article 26 of the African Charter provides that "States parties to the present Charter shall have the duty to guarantee the independence of the Courts[ ... ]." 86 . In elaborating on the provisions of Article 26 , "the Commission has set out a number of elements which are essential for the independence of the courts. The constitution should guarantee judicial independence , and judicial bodies should be created by law. A judiciary must be independent of external , especially executive influence , and

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Communication 799/2022 – Busisiwe Mkhwebane (represented by Shadrack Tebeile) v. Republic of South Africa

ACHPR Decision

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Type of Document

Decision

Keywords

Functioning and Independence of the Judiciary
Right to Fair Trial

Case Head Notes: The communication was brought on behalf of Busisiwe Mkhwebane, the former Public Protector of South Africa, challenging the constitutionality of the parliamentary process for removing holders of Chapter 9 constitutional offices. Specifically, the complainant argued that Rule 129V, which permitted the appointment of a judge to an Independent Panel tasked with assessing whether there was a prima facie case for removal from office, violated the principles of judicial independence and separation of powers. The complainant alleged that this infringed the rights guaranteed under Articles 7(1) and 26 of the African Charter, and consequently Article 1. Before approaching the African Commission, the matter had been litigated before the High Court and ultimately the Constitutional Court of South Africa, which upheld the constitutionality of the impugned rule. On the merits, the Commission held that the appointment of a retired judge to the Independent Panel did not undermine judicial independence or violate the doctrine of separation of powers. It found that South Africa's constitutional and legislative framework adequately safeguarded judicial independence and that the complainant had failed to provide evidence showing that the presence of a retired judge compromised the independence or impartiality of the judiciary. The Commission further held that it was not an appellate body over national courts and therefore could not review whether the Constitutional Court had "misdirected itself." It also found that the complainant had full access to domestic courts and had exercised her right to be heard. Consequently, the Commission found no violation of Articles 26, 7(1), or 1 of the African Charter.

Country

South Africa

Outcome: Decided on Merits

Year Decided: Mar 11, 2025

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7.1: Right to be Heard
ACHPR 1: General Obligations
ACHPR 26 : Duty to Guarantee Independence of Courts

Rights Violated (ACHPR Provisions)

None Indicated

Rights Not Violated (ACHPR Provisions)

ACHPR 7.1: Right to be Heard
ACHPR 1: General Obligations
ACHPR 26 : Duty to Guarantee Independence of Courts

Duration of Procedure

Jun 2, 2022 ~ Mar 11, 2025

Country Geolocation

Latitude: -30.559482

Longitude: 22.937506

Country Geolocation (linked ACHPR Decision): South Africa

Primary Documents

Busisiwe Mkhwebane (represented by Shadrack Tebeile) v. Republic of South Africa.pdf
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African Human Rights CLA 2.0

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Communication 799/2022 – Busisiwe Mkhwebane (represented by Shadrack Tebeile) v. Republic of South Africa

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