Previous 15 / 23 Next

75. Accordingly , the Respondent State submits that the Victim has not made a prima facie case of a breach of Article 7(1 ). Violation of Article 26 of the African Charter 76 . The Respondent State submits that the Complainant's argument is that the Constitutional Court was wrong in suggesting that it is not necessary to exclude a Judge from the Independent Panel , given that it is not clear how, if the Court is wrong , that results in a violation of Article 26. 77 . The Respondent State avers that the Constitutional Court determined that the appointment of a retired Judge as a member of the Independent Panel does not harm or impinge on the independence of the courts. The State further avers that there is no appeal to the Commission against the decision of the Constitutional Court, and further there is no reasonable basis on which the Commission could find that the Constitutional Court was 'wrong ' or 'misdirected ' itself. 78 . The Respondent State further contends that there is no basis on which the Commission could find that the African Charter prohibits a State from including a retired judge as a member of an Independent Panel to provide advice to the National Assembly , as to whether there is a prima facie case for removal of the holder of an office from that office . 79 . Accordingly , the Respondent State contends that the Victim has not made a prima case of a breach of Article 26 . ANALYSIS OF THE COMMISSION ON THE MERITS: 80 . The facts of this Communication are that the Victim was serving in the position of Public Protector, one of the State institutions provided in Chapter 9 of the Respondent State's Constitution , when a process to remove her from office was initiated by a representative in the National Assembly in accordance with Section 194 of the Constitution .20 Whereas Section 194 provides for removal from office of Chapter 9 mandate holders, it does not prescribe the process by which the National 20 Removal from office Section 194. (1) The Public Protector, the Auditor-General or a member of a Commiss ion estab lished by this Chapter may be removed from office only on (a) the gro und of misco nduct, incapacity or incompetence; (b) a finding to that effect by a committee of the Nationa l Assembly; and (c) the adoption by the Assembly ofa reso lution ca ll ing for that person's remova l from office. (2) A reso lution of the National Assemb ly concerning the removal from office of(a) the Public Protector or the Auditor-General must be adopted with a supporting vote of at least two thirds of the members of the Assemb ly; or (b) a member of a Comm ission must be adopted with a suppmiing vote of a maj ority of the members of the Assembly. (3) The President . _::-:..~ (a) may suspend a person from office at any time after the start of the proceedi ngs of a committee df the N'ation Assemb ly for the removal of that person; and >./.-.- <;c.CR ET 4~14 / i:.,' (b) must remove a person from office upo n adoption by the Assembly of the reso lution call ; ~ :fo r t p~rs 's ~\ removal. ., ' r ') •:• : in -~1 1r J 14 .o: ~ ~ ~I <C7a Au.u4 <- 'I<? J 'ii ,s..q~ -4~,t""~ o'<-"' ,. l (@~ , · l i /J ll1e-.. ('~•,-;: · ' 7 ""TOES l'f' _'/,,; '--~

Select target paragraph3

● ● ●

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

ACHPR Decision

Preview

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
English
ML TOC
Download View

African Human Rights CLA 2.0

Select target paragraph3

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

Primary Documents

Notifications