68.
Regarding violation of Article 1, the Respondent State submits that the
Complainant's contention that 'by virtue of the fact that the State violated the Victim 's
rights under Article 7(1) and 26 of the Charter, therefore the Respondent violated
the Victim 's rights under Article 1,' makes it clear that this is not a separate ground,
but rather a conclusion to be drawn from the other violations.
69 . The Respondent State submits that, it follows that if other complaints do not
demonstrate a prima facie breach, the Article 1 complaint falls away.
Violation of Article 7(1) of the African Charter
70.
The Respondent State avers that the Communication does not allege any of the four
elements which comprise the Article 7(1) right to have one's cause heard, nor does
it identify an element which was allegedly breached.
71.
The Respondent State refers to the Victim's contention that she was subjected to a
removal process by an Independent Panel which transgressed the principle of
separation of powers, in particular judicial independence, therefore the State
violated the Victim 's right to have her cause heard under Article 7(1) of the African
Charter. The Respondent State submits that under Article 34 of the Constitution , the
Victim has the right to have any dispute, that can be resolved by the application of
law, decided in a fair public hearing before a court, or where appropriate, another
independent and impartial tribunal or forum . The State further submits that the Victim
made clear that she exercised this right, given that she raised this point in the
Constitutional Court.
72 . The Respondent State avers that Article 7( 1)(b) is not applicable, because the
Independent Panel did not find the Victim 'guilty;' the Independent Panel found that
there is a prima facie case for the Victim to answer. Further, the result of the
Independent Panel is that the National Assembly will consider and decide whether
the Victim committed misconduct, and if so, whether it should recommend that she
be removed from office. The Respondent State further avers that Article 7(1 )(d) is
not applicable, because the Victim was not 'tried ' by the Independent Panel.
73.
Further, the State notes that the Victim doesn't suggest that the presence of a retired
Judge on the Independent Panel results in the panel not being independent or
impartial , nor does she suggest that the panel would be more independent and
impartial if it did not include a retired Judge. Further, the Victim does not make the
argument that a panel consisting of a Judge and two legal practitioners is less
independent or impartial than a panel consisting of three legal practitioners would
be. The Victim does not suggest that Judge was not 'impartial' either because of her
former office , or for any other reason . Therefore, the State submits that the Victim
does not allege that the Independent Panel is not sufficiently impartial or
independent; rather her complaint is that the presence of the Judge breaches the
principle of separation of powers which ensures the independence of the Co __
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74. The Respondent State submits that the Constitutional Court dee· 0
inclusion of a retired Judge on the Independent Panel does n ° br
separation of powers principle .
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