oo~~•-,~~~~-"'HACHPR
•
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
COMMUNICATION 799/2022
Busisiwe Mkhwebane
(represented by Shadrack ~ebei:l e)
Republic o
AdopMe par la
Comm/BBlon Altlcalne des Dro/ts de l'ltinme et des Peup/es
Falt /ors de la 8P" Session Otdlnalte, tenue vlrtuellement, du 25 Mvrler au 11 mars 2026.
AAJ~ ,
-<1,._,
o,,,
f'o'.
<, ·,
<..,- \
.........
.............
<l•\
~. ~
Mme
Pi
afrli
de/'h
Sec.
Com
'11
pies
t:lff'.tnaMa
ls
de/11
MQgll,ctlhl
African
Union
ec/eh/1S/AIO
The African Commission on Human and Peoples' Rights
31 Bijllo Annex Layout, Kombo North District, West Coast Region
Phone: (220) 230 4361 Fax: (220) 4410504
Emall: au-banjul@africanunion.org
httpa:/achpr.au.lnt/0
•
ACHPR
8
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
Communication 799/22: Busisiwe
Mkhwebane (represented by
Shadrack Tebeile) v. South Africa
Summary of the Complaint
1.
The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat) received a Complaint on 02 June 2022 from Adv. Shadrack Tebeile (the
Complainant), on behalf of Busisiwe Mkhwebane (the Victim), against the Republic
of South Africa (the Respondent State), a State Party to the African Charter on
Human and Peoples' Rights (the African Charter). 1
2.
The Complainant submits that the Victim was promoted to the position of Public
Protector of the Respondent State in October 2016. On 13 September 2017, the
Chief Whip of the Democratic Alliance, a political party in the National Assembly,
made a first request under the National Assembly's Rule 337(b ), to initiate
proceedings to remove the Victim from her position as provided in Section 194 of
the Constitution. However, with a vote of 6-4, the Portfolio Committee voted against
the party's request to remove the Victim from office. The basis for the removal of the
Victim from office was the adverse remarks made against the Victim in the judgment
of South African Reserve Bank v. The Public Protector I.
3.
The Complainant submits that, on 16 February 2018, the Democratic Alliance made
a second request for the Victim's removal; however, the Portfolio Committee
resolved by majority vote that the second request was premature due to the fact that
there was ongoing litigation with the same subject matter.
4.
The Complainant submits that on 23 May 2019, the Democratic Alliance filed a third
application for dismissal of the Victim, but in its report of 27 August 2019, the
Portfolio Committee indicated that there were no provisions to ensure a fair process
1
South Africa ratified the African Charter on 09 July] 996
1
for the dismissal of the heads of Chapter 9 institutions,2 including the Public
Protector, and therefore referred the matter for determination to the Rules
Committee of the National Assembly.
5.
The Complainant submits that on 28 November 2019, the draft rules of removal of
heads of Chapter 9 institutions were tabled in the National Assembly and adopted
on 03 December 2019. Thereafter, the Democratic Alliance filed a petition for the
removal of the Victim under the new Rules.
6.
The Complainant submits that in 2021 the Victim filed a case in the High Court
challenging the constitutionality of the new Rules. The Complainant further submits
that the Victim partially succeeded on her challenge against the impugned Rules;
however, the Speaker of the National Assembly challenged the High Court's
decision in the Constitutional Court, particularly an order declaring the new Rules
unconstitutional and invalid.
7.
The Complainant further submits that the Victim sought an order to cross-appeal
against the judgment of the High Court in the Constitutional Court.
8.
The Complainant submits that the Constitutional Court upheld that the Rule relating
to deprivation of legal representation as unconstitutional and invalid ; however, set
aside the High Court's judgment declaring Rule 129V, which provides for
appointment of a Judge in the Independent Panel tasked to determine whether there
are grounds for the removal of the office-bearer under Chapter 9, as unconstitutional
and finding that the appointment of a Judge to the Independent Panel is permissible.
9.
Not satisfied with the decision of the Constitutional Court, the Complainant avers
that the Victim submitted the Complaint for consideration by the Commission.
Articles alleged to have been violated :
10.
The Complainant submits that the Respondent State has violated Articles 1, 7(1)
and 26 of the African Charter.
Prayers:
11 . The Complainant requests the African Commission on Human and Peoples' Rights
{the Commission) to:
Declare that the Respondent State has violated the Victim's rights under Articles
1, 7(1) and 26 of the African Charter;
ii. That Rule 129V relating to appointment of a Judge as part of the Independent
Panel is inconsistent with Article 26 of the African Charter;
iii. That Rule 129V relating to appointment of a Judge as part of the Independent
Panel is declared unconstitutional and invalid ;
i.
iv. Order the Respondent State to pay the Victim financial compensation in the
amount of R50,000,000 (fifty million Rand) for damages suffered, including the
costs of litigation at the national level, within three months; and
v. Further orders as the Commission deems fit to grant in the circumstances.
Procedure:
12.
The Secretariat received the Complaint on 02 June 2022. The Complaint included
a request for provisional measures for the Victim pending finalization of the
Communication , requesting that the Respondent State be ordered to suspend the
processes to remove the Victim from office in terms of Section 194 of the
Constitution.
13.
On 09 August 2022, the Parties were informed of the Commission's decision to be
seized of the matter, in addition to its decision not to grant the request for provisional
measures because the Complaint did not demonstrate the irreparability of the
possible damage justifying the urgency of the provisional measure. The
Complainant was requested to present evidence and arguments on the admissibility
and merits of the Communication within two months of the notification, in
accordance with Rule 116(1) of the Commission's Rules of Procedure (2020).
14.
On 04 October 2022, the Complainant transmitted submissions on admissibility and
merits to the Commission which were transmitted to the Respondent State, and on
28 February 2023 the Respondent State's submissions on admissibility and merits
were received by the Secretariat. On 12 March 2023, the Secretariat received the
Complainants rejoinder on the Respondent State's submissions.
15. The Communication was declared admissible during the Commission's 79th
Ordinary Session , held from 14 May to 03 June 2024.
ADMISSIBILITY
The Complainant's Submissions on Admissibility:
16.
With regards to Article 56(1) of the African Charter, the Complainant submits that
the identity of the Victim and Complainant have both been indicated, therefore
satisfies the first requirement for admissibility.
17. Regarding Article 56(2) of the African Charter, the Complainant submits that the
violations in the present Communication are related to the human rights which fall
within the ambit of the African Charter. The Complainant submits that the
Communication is in conformity with the Constitutive Act of the African Union and
the African Charter.
19. The Complainant submits that the claims for violations and the allegations therein
are not based exclusively on news disseminated through the mass media, instead
are based on the decisions by the authorities, institutions and courts of the
Respondent State, and the court proceedings which took place within the domestic
courts of the Respondent State. Accordingly, it is submitted that this requirement for
admissibility is satisfied .
20. Regarding Article 56(5) of the African Charter, the Complainant submits that the
matter has been through the local courts in the Respondent State, and further the
fact that the matter went up to the Respondent State's Constitutional Court, means
that the matter has been adjudicated up to the highest Court of the Respondent
State. Accordingly , the Complainant submits that local remedies have been
exhausted within the Respondent State.
21 . The Complainant further submits that in 2021 , the Victim brought an application in
the High Court of South Africa for urgent relief, seeking an order relating to the Rules
on the removal of the heads of Chapter 9 institutions, including the Public Protector
which is the office occupied by the Victim since October 2016. The High Court
declared the Rules unconstitutional. The High Court severed Rule 129V, which
provides for appointment of a Judge into the Independent Panel which is tasked to
determine whether there are grounds for removal of the officer-bearer under
Chapter 9, removing reference to "appointment of a Judge as part of the
Independent Panel."
22 . The Complainant further submits that the Speaker of the National Assembly brought
an application in the Constitutional Court, seeking an order for direct leave to appeal
the High Court's decision, which was granted. The Complainant avers that the
Constitutional Court confirmed the constitutional invalidity relating to legal
representation . However, the Constitutional Court decided that "the application
relating to the constitutionality of Rule 129V is dismissed."
23.
The Complainant further submits that the Victim sought an order from the
Constitutional Court to cross-appeal against the judgment of the High Court.
Accord ingly, the Complainant submits that because the Victim 'approached the
Constitutional Court to cross-appeal'3 in the highest Court in the Respondent State,
the Victim has exhausted local remedies and therefore satisfies the requirement for
admissibility.
24.
With regards to Article 56(6) of the African Charter, the Complainant submits that
the apex court of the State, namely the Constitutional Court, handed down its
judgment on 04 February 2022 , while the Communication was received by the
Commission on or about 02 June 2022, which is within less than five months from
the date of the judgment of the highest Court. Accordingly, the Complainant submits
that the Complaint was filed within a reasonable time from the date of exhausting
local remedies.
3 Paragraph 35, Complainant's Heads of Argument on Admissibility and Merits
4
25.
The Complainant further submits that there was never any settlement of issues by
the parties in accordance with the principles of the Charter of the United Nations,
the Constitutive Act of the African Union, the provisions of the African Charter or any
legal instrument of the African Union. Accordingly, it is submitted that the
requirement for admissibility under Article 56(7) of the African Charter has been met.
26.
Accordingly, the Complainant submits that the Victim has satisfied the requirement
for admissibility.
The Respondent State's Submission on Admissibility:
27.
The Respondent State submits that the Communication should be dismissed
because it does not meet the requirements for admissibility. The State further
submits that the Complainant's true cause of action is a complaint about the
judgement of the Constitutional Court.
28.
In this regard, the Respondent State avers that a core requirement for seizure and
admissibility of a Communication is that the Victim must demonstrate a prima facie
case of a breach of the African Charter. The Respondent State further avers that
the allegations of a Communication should provide prima facie evidence that a
provision of the African Charter has been violated.
29.
The Respondent State submits that the Commission like other international bodies
requires that the Complainant submit a prima facie case in order to be admissible.
The State further submits that Commission has explained that "[A] communication
which does not include a prima facie violation of the Banjul Charter or some of the
basic principles of the OAU Charter such as 'freedom, equality, justice or dignity' will
not be examined," referring to the ACHPR Information Sheet No.3, p.8. 4
30.
The Respondent State contends that "the Complainant relies in this regard on
alleged breaches of Articles 1, 7(1) and 26 of the Charter;" 5 however, submits that
taking all the factual allegations at face value, they do not demonstrate an alleged
breach of any of the Articles on which the Complainant relies. 6
The Complainant's rejoinder on Admissibility:
31.
The Complainant submits that the Respondent State is incorrect in stating that the
Communication's true cause of action is a complaint about the judgment of the
Constitutional Court. The Complainant submits that the true cause of action is
violation of Article 7(1) and 26 of the African Charter, in that the Respondent State's
Rule 129V of the National Assembly permitted the appointment of a Judge as part
of the Independent Panel. 7
32.
The Complainant further submits that the Complaint about Rule 129V of the
Respondent State's National Assembly has been the cause of action in the High
Court and Constitutional Court, and therefore remains the cause of the Victim. The
Complainant avers that determination of the violation of Article 7(1) and 26 of the
African Charter cannot be undertaken by the Commission without looking into the
judgments of the Respondent State's domestic court, because of the fact that the
Victim must have exhausted local remedies.
33. The Complainant submits that the Commission will look into the findings of the
Constitutional Court, given that it is impossible to determine whether there was a
violation of the rights in the African Charter without looking into the judgments of the
local courts of the Respondent State.
34.
Accordingly, the Complainant submits that the Complaint discloses all the
requirements for admissibility and demonstrates a prima facie case for a violation of
the rights in the African Charter.
THE COMMISSION'S ANALYSIS ON ADMISSIBILITY:
35.
With respect to admissibility of Communications in accordance with Article 56 of the
African Charter, the Commission held in FIDH & Others v. Senegal that "the
conditions outlined in Article 56 are cumulative and should all be adequately fulfilled
for a communication submitted in conformity with the terms of Article 55 to be
admissible. Consequently, non-respect of any one of these conditions is liable to
render a communication inadmissible."8 The following , therefore, is an assessment
on the admissibility of the present Communication .
Article 56(1) of the African Charter
36.
In relation to the requirement in Article 56(1) of the African Charter, which provides
that Communications should indicate their authors even if the latter requests
anonymity, the Commission notes that the identity and the address of the
Complainant has been provided and further the Complainant has not requested
anonymity. In addition, the Victim being represented in the Communication is duly
identified. Accordingly, the Commission finds that the requirement under Article
56( 1) of the African Charter has been met.
Article 56(2) of the African Charter
37. In relation to the requirement of Article 56(2) of the African Charter, the Commission
has interpreted it as including compatibility with the Constitutive Act of the African
Union or the African Charter, in addition to compliance with the four aspects of its
competence, namely competence ratione personae, materiae, temporis and /oci. 9
38.
In the present Communication, the Complainant submits that the violations in the
Communication fall within the ambit of the African Charter, and further that the
Communication is in conformity with the Constitutive Act of the African Union and
the African Charter. The Respondent State, on the other hand, contends that a core
requirement for seizure and admissibility of a Communication is that the Victim must
demonstrate a prima facie case of a breach of the African Charter, and further that
the allegations of a Communication should provide prima facie evidence that a
provision of the African Charter has been violated .
39.
In order to address the Respondent State's contention, reference can be made to
Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers
for Human Rights) v. Zimbabwe, in which the Commission held the following:
"It is important to explain what prima facie violation of rights and freedoms entail.
The term 'prima facie ' means "on the face of it"; "so far as can be judged from the
first disclosure "; "a fact presumed to be true unless disproved by some evidence
to the contrary." So, prima facie is a decision or conclusion that could be reached
from preliminary observation of an issue or a case without deeply scrutinizing or
investigating into its validity or soundness."10
40. Further, in Priscilla Njeri Echaria (represented by Federation of Women
Lawyers, Kenya and International Center for the Protection of Human Rights)
v. Kenya, it was noted that:
"The African Commission has jurisdiction over a Communication in this respect,
which alleges the violation of rights guaranteed in the African Charter. The subject
matter of the Communication must relate to the violation of a right protected in the
African Charter and the Complainant is only required to establish a prima facie
violation. In assessing whether a prima facie case exists, the African Commission
only needs to be satisfied that the facts before it points to likelihood that a right
protected in the African Charter has been violated. "11
41 . In the present Communication, the Commission observes that the Complainant
alleges violations of the African Charter including the right to have one's cause
heard , and in support of the allegations has submitted judgments of the High Court
and Constitutional Court as evidence of the violations. Accordingly, based on a
preliminary observation of the facts presented in the Communication, the
Commission considers that the allegations are specific enough to establish a prima
facie case. Furthermore, the Commission is of the view that the Communication
raises material elements which may constitute a violation of human rights, and as
such has competence rationae materae to deal with the matter.
42.
Regarding the other aspects of jurisdiction, the Commission notes that the
Communication was introduced against a State Party to the African Charter
(competence ratione personae); the Complaint relates to facts that occurred after
the Respondent State became a party to the African Charter (competence ratione
temporis); and the violation was committed in the territory of the Respondent State
(competence ratione loci) . Thus, the Commission concludes that all four aspects of
its competence are fulfilled .
43.
Concerning compatibility with the Constitutive Act of the African Union, the
Commission notes that in this case the Victim requests the protection of her human
rights , that is her rights under Article 7( 1) and 26 of the African Charter. One of the
objectives of the Constitutive Act of the African Union, provided for in Article 3(h)
thereof, is the protection of human rights. In addition, the Commission observes that
the Complaint and Complainant's submissions do not reveal any incompatibility with
the African Union Constitutive Act or the African Charter.12
44.
Consequently, the Commission concludes that the Communication meets the
requirements of Article 56(2) of the African Charter.
Article 56(3) of the African Charter
45.
With respect to Article 56(3) of the African Charter, which provides that
Communications shall be considered if they are not written in disparaging or
insulting language directed at the State concerned and its institutions, or to the
Organization of African Unity, the Commission has not observed any insulting or
disparaging language in the Communication, and accordingly finds that Article 56(3)
of the African Charter has been met.
Article 56(4) of the African Charter
46.
Article 56( 4) of the African Charter states that Communications shall be considered
"if they are not based exclusively on news disseminated through the mass media."
In the present Communication the Commission takes note of the fact that the
Complainant submitted , as evidence , judgments of the High Court and
Constitutional Court of South Africa in support of the arguments on admissibility. In
light of the fact that the Commission has not observed any evidence that the
information provided in the Communication is based exclusively on news
disseminated through the media, the Commission consequently finds that the
requirement of Article 56( 4) of the African Charter has been met.
Article 56(5) of the African Charter
47. Article 56(5) of the African Charter requires that Communications be submitted after
exhausting local remedies , if any, unless it is obvious that this procedure is unduly
prolonged . In this regard , the Commission notes that it is a generally accepted
principle in international law that before an international body is approached, the
applicant must exhaust all available legal domestic remedies. 13 Further, as noted in
Romy Goornah (represented by Dev Hurnam) v. Mauritius, in order to meet the
exhaustion requirement a victim must have obtained a final decision from the highest
Court to which recourse is available. 14
48.
With regard to the present Communication, the Complainant submitted that, in 2021
the Victim brought an application in the High Court of South Africa for urgent relief,
seeking an order declaring the Rules relating to the removal of the heads of Chapter
9 institutions. When High Court declared a number of the Rules unconstitutional, the
Speaker of the National Assembly brought an application in the Constitutional Court,
seeking an order for direct leave to appeal the High Court's decision, which was
granted.
49.
The Victim sought an order from the Constitutional Court to cross-appeal against
the judgment of the High Court against 8 of the 10 grounds dismissed by the High
Court. 15 The Constitutional Court granted the request by the Victim to crossappeal, 16 thereby accepting to review the Victim's appeal. In its decision of 04
February 2022, the Constitutional Court considered all grounds of appeal from the
Victim and found them without merit. Accordingly, the Victim's cross appeal was
dismissed. 17
50.
The Commission takes note of the fact that the Constitutional Court of South Africa
is the highest court and final court in the country's judicial system, as stipulated in
Article 167(3)(a) of the Constitution of the Republic of South Africa. Accordingly, the
Commission finds that by submitting an application for appeal by the Constitutional
Court, the Victim exhausted local remedies in the Respondent State, and therefore
the requirement under Article 56(5) African Charter has been met.
Article 56(6) of the African Charter
51.
Article 56(6) of the African Charter provides that the Commission shall consider
Communications which "are submitted within a reasonable period from the time
domestic remedies are exhausted, or from the date the Commission is seized of the
matter."
52.
In Michael Majuru v. Zimbabwe, the Commission noted that the African Charter
does not provide for what constitutes a reasonable period; however, the
Commission took cognizance of the provisions of the European Convention on
Human Rights and Fundamental Freedoms and the Inter-American Convention on
Human Rights, which provide that they "may only deal with the matter within a period
of six months from the date on which the final decision was taken ." 18
53.
In light of the fact that the present Communication was submitted to the Commission
on 02 June 2022, which is approximately four months after the Constitutional Court's
judgment which assessed the Victim's request for appeal on 04 February 2022, the
Commission finds the Communication was submitted within a reasonable period
from the time domestic remedies were exhausted in the Respondent State.
Accordingly, the Commission finds that the requirement under Article 56(6) of the
African Charter has been met.
Article 56(7) of the African Charter
54.
Article 56(7) of the African Charter stipulates that Communications received by the
Commission shall be considered if they "do not deal with cases which have been
settled by those States involved in accordance with the principles of the Charter of
the United Nations, or the Charter of the Organization of African Unity or the
provisions of the present Charter." In the present Communication, there is no
evidence before the Commission to show that this Communication has been settled
by any international adjudication mechanism. Consequently, the Commission holds
that the admissibility requirement in Article 56 (7} of the African Charter has been
met.
55.
In view of the above, the Commission finds that the Communication is compatible
with Article 56 of the Charter and declares it admissible.
MERITS
Submissions of the Complainants on the merits:
Violation of Article 7(1) of the African Charter
56.
The Complainant submits that the Victim was subjected to a removal process
constituting an Independent Panel, which violates the principle of separation of
powers, in particular judicial independence. Accordingly, the Complainant avers that
the Respondent State violated the Victim's right to have her cause heard. In
particular, the Complainant submits that, the fact that the process for removal of the
Victim is inconsistent with the principle of separation of powers, in particular judicial
independence, the process violates the Victim's right to have her cause heard, which
is protected under Article 7(1) of the African Charter.
57.
The Complainant contends that, should it be found that the Respondent State's
process for removal of the Victim from her office as Public Protector is inconsistent
with judicial independence, it is therefore submitted that the appointment of the
Independent Panel for the removal of the Victim from the position of Public Protector
violates the Victims' right under Article 7(1) of the African Charter.
18
Communication 308/05: Michael Majuro v. Zimbabwe (2008) ACHPR, paragraph 108
10
Violation of Article 26 of the African Charter
58.
The Complainant referred to the decision of the Constitutional Court, which held that
the appointment of a Judge to the Independent Panel does not violate the principle
of separation of powers, noting that the Constitutional Court held the following : "At
this juncture, the question should be asked : what is the role played by the Judge
who sits on this Independent Panel? The answer is that the Judge considers
whether there is a prima facie case against the office-bearer; she does not play any
decision-making role in the removal of the incumbent. Moreover, the Judge does
this as an impartial and independent person ." 19
59. The Complainant contends that it is not correct that the Judge "does not play any
decision-making role in the removal of the incumbent, because it is the findings of
the Independent Panel which will decide whether there is a case against the officebearer, and if there is a prima facie case , the enquiry must proceed before the
Committee established in terms of Section 194 of the Constitution."
60. The Complainant contends that every stage, including an inquiry by the Independent
Panel , consisting of a Judge and two other persons, on whether there is a prima
facie case against the "office bearer" is crucial , cannot be taken for granted and to
take it for granted amounts to disregard of the due processes leading to removal of
the office-bearer from the office.
61 . The Complainant avers that the Constitutional Court misdirected itself when it found
that "the Judge is appointed to the Independent Panel, not to make a binding
decision, but to give advice on the subject of removal of a Chapter 9 institution office
bearer," and further that "it bears emphasis that the Judge is one of a three person
Panel , who may well find herself in the minority in the recommendations to be made
by the Independent Panel." The Complainant avers that the Constitutional Court
violated Article 26 of the Charter when it misdirected itself by suggesting that it is
not necessary to exclude a Judge from the Independent Panel "merely because the
Judge is only one of a three-person panel and also that the Judge may be in the
minority on the recommendations."
62.
19
The Complainant contends that the Constitutional Court lost sight of the fact that the
Judge may also find herself in the majority decision on the recommendations, and
for this reason "the involvement of a Judge in the Independent Panel which deals
with removal of office bearer by a politically charged process undermines the
separation of powers and independence of courts. "
Complainant's submissions on Admissibility and the Merits, paragraph 44
11
independence of the Judiciary, because Judges are "used on processes which are
designed for politicians."
64.
The Complainant avers that the High Court correctly found that it is undesirable for
a Judge to be part of the Independent Panel, finding that "as of late, the judiciary
has come under attack for being partisan to political parties or factions. Judicial
involvement in this process feeds into this narrative." The Complainant contends
that the High Court held that "the judiciary would be well advised to steer clear of a
process so politically charged , in which its involvement adds no value other than
expediency." The Complainant avers that the Constitutional Court confirmed that
the involvement of a Judge in the Independent Panel adds no value when it stated
that "the Judge is appointed to the Independent Panel not to make a binding
decision."
65.
Therefore, the Complainant submits that the composition of an Independent Panel
which includes a Judge constitutes a failure by the Respondent State to uphold a
duty to guarantee the independence of the Courts, for the following reasons:
• By virtue of the fact that the Independent Panel constitutes a Judge, and two
other "non-judge" members, this is clear evidence that the functions to be carried
out by the Independent Panel are not judicial functions, and are also not
connected with judicial functions; therefore there is no compelling reason why a
non-judicial function which is not closely connected with the core function of the
judiciary should be performed by the member of the judiciary.
• The High Court correctly held that it was not desirable to have a Judge on the
Independent Panel.
• It is undesirable for a Judge to sit with two other non-judge members of the
Independent Panel, in a politically charged process, because the process is
exclusively designated to the National Assembly for the removal of office bearers
from office. To permit Judges to sit in this kind of panel not only weakens judicial
independence because judges will be tasked to sit in politically charged
processes, but that will also weaken the public's confidence in the judiciary.
66.
The Complainant submits that, to ensure the independence of the Judiciary, judges,
both retired and in active service, should only be appointed in processes that are
not politically oriented, such as the National Assembly's removal of office bearers in
terms of Section 194 of the Constitution.
Violation of Article 1 of the African Charter
67. The Complainant submits that, in light of the fact that the Respon
violated the Victim 's rights under Articles 7(1) and 26 of the A
therefore the State has also violated Article 1 of the Charter.
Submissions of the Respondent State on the merits:
3
\4 I
?'
I
Violation of Article 1 of the African Charter
\\
\
•
(~
'~
~
12
~ (;Aa
/
~~/
-
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~
oN >iUM.:i
74.
The Respondent State submits that the Constitutional Court dee· 0 " ttra ~ 1.q, 1c,.,,\
inclusion of a retired Judge on the Independent Panel does n :j br c~. \'\
separation of powers principle.
.] g
~, : ~
1\
;','
~ \
~
13
<<G-1\.
l ~
r,
AU
•
~ :ci:
~
l'_I ;
1
-(/A .,, -~r;l·
,
' b ~ ~ A.INE 0~::, ¢
~rot=s ?{\~
~.:-:i:s~:,..,.;.,,-
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. (I) The Public Protector, the Auditor-General or a member of a Commission established by this Chapter
may be removed from office only on (a) the ground of misconduct, incapacity or incompetence;
(b) a finding to that effect by a committee of the National Assembly; and
(c) the adoption by the Assembly of a resolution calling for that person' s removal from office.
(2) A resolution of the National Assembly 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 Assembly; or
(b) a member of a Commission must be adopted with a supporting vote ofa majority of the members of the Assembly.
(3) The President (a) may suspend a person from office at any time after the start of the proceedings of a committee c:if the Nati
Assembly for the removal of that person; and
/},/·"' sECRET 4~,4 -14.,
(b) must remove a person from office upon adoption by the Assembly of the resolution call j~-for t
p~r 's' ~\
removal.
[,' {
1.1
14
@
~
s
~
'.'i. i<\,
4U-c.,~
~-r;\)
~Ip
~'Al#f_(P f(,,,//1/
£7oes.-f.'~,Y
'"'--~ . •....,,,, .
',
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 a/ia, 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 recommendations 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 this, 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
21
Complainant's submissions on Admissibility and the Merits, Annexure BM3, page 136
Rule 129T(a), Rules for removal of Office-Bearers in Institutions Supporting Democracy, Ann~
- ,.
23 Rule 129X(b)
/ .,~,,-,, ,_ ' . 4 ~
1
24 Rule 1292(1)
~.i"''
"' .,.
~,_.,"'1-0
25 Rule 1292(2)
.,,r
1,<
26
"The African Charter on Human and Peoples' Rights: A Commentary," Rachel Murray
Un~ ,--ssj
2019, pg.571
i{ f
-" 1 Ill ~
22
I/;-'
/<ixwrl
,.J.
15
c:I
.,_.
\\ \).
,·<1a_'l,-9,
AU-t,,4
~
Ip f;;
,
"'"'ff
,~,,
the State should refrain from taking any action which may threaten directly or
indirectly the independence and the security of judges and magistrates."27
87. The Commission has also held that 'the doctrine of separation of powers requires
the three pillars of the State to exercise powers independently. In order to guarantee
its independence, the judiciary, must be seen to be independent from the executive
and parliament. '28
88.
In the present Communication , the Complainant submits that the Constitutional
Court misdirected itself and violated Article 26 of the Charter in its decision which
held that it was not necessary to exclude a Judge from the Independent Panel,
merely because the Judge is only one of a three-person Panel. The Complainant
submits that because the Independent Panel is tasked to fulfil a duty which is
politically charged , because the removal of the office bearer is done by the National
Assembly per the provisions in the Constitution , this weakens the independence of
the Judiciary because Judges are used in processes designed for politicians.
Further, the Complainant submits that appointing a Judge to the Independent Panel
violates the State's duty to guarantee the independence of the judiciary because it
involves Judges in politically charged processes, which weakens the public's
confidence in the judiciary.
89. The State, on the other hand, submits that if the Constitutional Court was wrong to
decide that it was not necessary to exclude a Judge from the Independent Panel, it
is not clear how this results in a violation of Article 26 of the African Charter. Further,
there is no basis on which the Commission could conclude that the 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 a public office from that office.
90. In assessing whether the appointment of a Judge to the Independent Panel violates
the principle of separation of powers, the Commission takes cognizance of General
Comment No. 32 of the UN Human Rights Committee which provides that States
should take specific measures guaranteeing the independence of the judiciary,
protecting judges from any form of political influence in their decision-making
through the constitution or adoption of laws establishing clear procedures and
objective criteria for the appointment, remuneration , tenure, promotion, suspension
and dismissal of the members of the judiciary and disciplinary sanctions taken
against them .29
91 . In this regard, the Commission notes that the Respondent State's Constitution
includes a legal framework to safeguard the separation of powers and the
independence of the Judiciary. Specifically, Section 165 provides the following:
(2) The courts are independent and subject only to the Constitution and the law,
which they must apply impartially and without fear, favour or prejudice.
(3) No person or organ of state may interfere with the functioning of the courts.
(4) Organs of state, through legislative and other measures, must assist and protect
the courts to ensure the independence, impartiality, dignity, accessibility and
effectiveness of the courts.
(6) The Chief Justice is the head of the judiciary and exercises responsibility over
the establishment and monitoring of norms and standards for the exercise of the
judicial functions of all courts.
92.
In addition, Section 174 provides for the appointment of judicial officers, Section 176
for terms of office and remuneration and Section 177 includes provisions on removal
of a Judge from office. Accordingly, the Commission observes that the Respondent
State's Constitution enshrines the principle of the separation of powers and seeks
to ensure the independence of the Judiciary.
93.
However, in spite of this, the Complainant maintains that the appointment of a Judge
to the Independent Panel violates the principle of the separation of powers, because
the removal of 'office bearers' is a politically charged process, which weakens the
independence of the Judiciary because Judges are used in processes designed for
politicians.
94.
In this regard , the Commission observes that the Rules adopted by the National
Assembly provide for the possible appointment of a Judge to the Independent
Panel ,30 and require that in the event that the Speaker decides to appoint a Judge
to the Independent Panel this is done in consultation with the Chief Justice31 as the
Head of the Judiciary.32 Therefore, the independence of the Judiciary is protected
in principle, because the appointment of a Judge as a member of the Independent
Panel by the Speaker is provided in the Rules under which the Panel is constituted,
and further the appointment of a Judge to this Panel is done in consultation with the
head of the Judicial branch of Government.
95.
Additionally, the Rules provide that the Panel "must be independent and subject only
to the Constitution, the law and these rules, which it must apply impartially and
without fear, favour or prejudice." 33
96.
Therefore, it can be observed that the Rules seek to ensure the protection of the
Independent Panel , and by extension any Judge who may be appointed as a
member of the Panel , from external interference. Therefore, whereas the
Independent Panel's mandate may be a politically charged process, the
Commission considers that this does not automatically violate the principle of the
separation of powers.
30
Rule 129V(l ): The Panel must consist of three fit and proper South African citizens, which may include a Judge,
and who collectively possess the necessary legal and other competencies and experience to con
uch an
assessment
,.....-_ :,- -,; ;;-,::;
31
Rule 129\1(3) If a Judge is appointed to the panel, the Speaker must do so in consultation w· -i bi'ChiefJust4~~
32
Section 165(6) of the Constitution, "The Chief Justice is the head of the judiciary and exe ~~ responsrb • • '1,\,;?~
the establishment and monitoring of nonns and standards for the exercise of the judicial fu ~ ns all c_~ ll'
~~
33
Rule 129X(l )(a)
: il g
r~,
~
·" ~·-8 ~"'
'\.• (~\s_.q,..
,
411-t,4 ~ ~. w'"'
., •
,, .,,o .,~
~
I• !I'.
17
r ,t-,,J
~.,
97. The Commission also observes that the Complainant has not made the argument,
nor adduced evidence, demonstrating that the Parliament included a Judge in the
Independent Panel for the purpose of influencing the Judiciary, and by extension
violating the separation of powers between the three branches of Government in the
Respondent State.
98.
In addition , the Complainant averred that Rule 129V dealing with the appointment
of a Judge does not differentiate between a Judge in active service and a retired
Judge, and further that the appointment of a Judge who is still in active service in
the Independent Panel weakens the independence of the Judiciary. However, as
indicated in the submissions of both Parties, the facts of the Communication
demonstrate that a retired Justice was appointed to the Independent Panel tasked
to conduct the assessment to determine whether the Victim should be removed from
office. 34
99. In this regard , the Commission observes that, the fact that a retired Judge was
appointed to the Independent Panel refutes the Complainant's argument that the
presence of a Judge affects the independence of the Judiciary, or it's perception
thereof. While the mere fact of the inclusion of a Judge in the Independent Panel,
constituted following established processes, is not on its own enough to compromise
the independence of the Judiciary, the fact that the member of the Independent
Panel is a retired Judge renders the allegation of the Complainant without
reasonable grounds.
100. The Complainant also averred that the Constitutional Court misdirected itself, and
in so doing violated Article 26 of the Charter. This allegation is in reference to the
Judgement of the Constitutional Court,35 in which it held that "the application relating
to the constitutionality of Rule 129V is dismissed;"36 - that is the Rule pertaining to
the appointment of a Judge to the Independent Panel.
101 . In this regard , the Commission observes that the Complainant is in effect requesting
the Commission to review the Constitutional Court's decision to determine whether
it 'misdirected' itself, thereby violating Article 26 of the African Charter. However,
this falls outside the Commission's mandate given that it has no appellate jurisdiction
over cases decided by Courts in the State Parties. Accordingly, the Commission
declines to assess whether the Constitutional Court misdirected itself and violated
Article 26 of the Charter.
102. This notwithstanding, the Commission takes the opportunity to highlight the
distinction between the Commission sitting as an appellate body reviewing the
findings of national courts, versus its actual mandate as per the African Charter. The
distinction is that the Commission's review is limited to a few questions: first, whether
or not there is evidence to establish the occurrence of a violation of rights
guaranteed under the Charter; and second , whether after approaching national
courts, the Victim was not able to get remedies for the violations. In no case would
the Commission's consideration of the Communication involve reviewing whether
national courts erred or not. If the Commission has to undertake such analysis, it
would not be on the basis of the legal standards of the national legal system, but on
the basis of the standards elaborated in the African Charter. Even then , the purpose
of the analysis would only be to establish whether or not a violation of any of the
rights took place, and whether or not local remedies were availed .
103. Lastly, as to the Complainant's contention that the presence of the Judge in the
Independent Panel will weaken the public's confidence in the judiciary, the
Commission observes that the Complainant has not submitted any evidence or
arguments which demonstrate how the public's confidence in the Judiciary will be
weakened by the appointment of a Judge to the Independent Panel ; this is merely
speculation.
104. In this regard , the Commission's jurisprudence is instructive. In Tsatsu Tsikata v.
Republic of Ghana, the Commission held that "proving a case entails producing
evidence that moves the allegation from one point to the next towards absolute
certainty.37 Accordingly, in the absence of any evidence or arguments to buttress
the allegation , the Commission is unable to hold that the public's confidence in the
Judiciary will be weakened if a Judge is appointed as a member of the Independent
Panel .
105. Based on this analysis, the Commission is of the considered view that the
appointment of a Judge to serve in the Independent Panel does not violate the
principle of separation of powers which ensures the independence of the Judiciary
and accordingly does not find a violation of Article 26 of the African Charter.
Violation of Article 7(1) of the African Charter
106. Article 7(1) of the African Charter provides the following:
"Every individual shall have the right to have his cause heard. This comprises:
(a) the right to an appeal to competent national organs against acts of violating his
fundamental rights as recogn ized and guaranteed by conventions, laws, regulations
and customs in force ;
(b) the right to be presumed innocent until proved guilty by a competent court or
tribunal ;
(c) the right to defence, including the right to be defended by counsel of his choice;
(d) the right to be tried within a reasonable time by an impartial court or tribunal."
107. The Complainant contends that the violation of the Victim's right _~~~-, se
heard, is premised on the argument that the appointment of a , tffie tq ..serve i.n1(
, , (..)
,.f
,_~
37
I'
Communication 322/2006: Tsatsu Tsikata v. Rep ublic of Ghana (2014) ACHPR. para !~ p~ l; 4
19
<1
:
\\
:
··1
•
('l\
•
.3
0
w
0
~
~
' . .:.u.u,.,.. ~ .:-i5
,,
,
•i 'i~----- "' "...,
'. •, ':,4
ICA1M:. 0€ <c,~
' , ~£roes~
Independent Panel is inconsistent with the principle of separation of powers, in
particular judicial independence. Therefore, because the process for removal of the
Victim is inconsistent with the principle of separation of powers, the effect is that the
process violates the Victim's right to have her cause heard, which is protected under
Article 7(1) of the African Charter. The Complainant concludes that, if the
Commission finds that the Respondent State's process for remo val of the Victim
from her office as Public Protector is inconsistent with judicial independence, it is
submitted that this violates the Victims' right under Article 7(1) of the Charter.
108. The Respondent State, on the other hand, avers that the Communication does not
allege any violation of the four elements which comprise Article 7(1) of the African
Charter, and further that its Constitution protects the Victim's right to have any
dispute heard before a court, or where appropriate, another independent and
impartial tribunal or forum. The Respondent State submits that the Constitutional
Court decided that the inclusion of a Judge on the Independent Panel does not
breach the separation of powers principle, therefore the Victim has not
demonstrated a prima facie case of a breach of Article 7( 1);
109. In assessing the alleged violation of Article 7( 1), reference can be made to the
Commission's jurisprudence which provides that "the duty to guarantee the
independence of courts is inextricably linked to, and a pillar of the right to fair trial.
The right to have one's cause heard entails the right to have such cause heard by a
court or tribunal that is independent of external, especially executive influence. In
turn independence has implications for the actual or apparent impartiality of the court
or tribunal. The right to have one's cause heard by an independent and impartial
court or tribunal is an absolute right that is not subject to exceptions." 38
110. Bearing this in mind, the Commission notes that it has not found that the principle of
separation of powers has been violated by the appointment of a Judge to the
Independent Panel. In light of this, the Commission cannot find that the process
violated the Victim's right to have her cause heard.
111. Conversely, and as noted by the Respondent State, the Constitution provides that
"everyone 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." 39 Furthermore, the Commission notes
that whereas the Independent Panel is not strictly a court or tribunal, the Victim is
provided an opportunity to heard in the Independent Panel's process. Specifically,
Rule 129X(c)(ii) provides that the Panel "must without delay provide the holder of a
public office with copies of all information available to the panel rel~
assessment" and "must provide the holder of a public office with /. ~~~ijb~~~
opportunity to respond in writing, to all relevant allegations against [df or
." "1-<1!' ' ( ) } ,
(!}if.,. } ~ ~\
$ n
~<.J
ii
:
:>
'€\
,
Al•-t;A
--~~-
:
I i:'
38 Jd, paragraph 146
39
Article 34 of the Constitution of the Respondent State
20
,
"5/1)
~~ICA/Nt ~. ;
_f:t9~c::-
~- _, '
..
112. In addition , the Commission recalls that the Victim filed a case in the High Court, 40
and subsequently appealed to the Constitutional Court,41 on the constitutionality of
the Rules for the removal of office bearers, including Rule 129V on the appointment
of a Judge to serve in the Independent Panel. The Constitutional Court received ,
considered and ultimately dismissed the Victim 's appeal on the constitutionality of
Rule 129V.
113. In its jurisprudence, the Commission has held that "the right to be heard requires
unfettered access to a court having jurisdiction to hear his case, that the issue be
brought before the court and that the court is competent and enabled, by law, to
hear the case."42 Furthermore, "the right to be heard extends beyond just those
arrested and detained, to everyone to have access to relevant judicial bodies with
jurisdiction to hear their case and grant them adequate compensation." 43
114. With this jurisprudence in mind , and taking into consideration the information before
the Commission , it is observed that the Victim had access to the courts in the
Respondent State which had jurisdiction to hear her case regarding the Rule on the
appointment of a Judge to the Independent Panel and was able to bring her case
before these courts. More importantly, the Rules governing the Independent Panel
provide for the Victim to be afforded the opportunity to be heard via the Rule which
provides that the Victim can 'respond in writing to all relevant allegations' against
her, during the Independent Panel's assessment of the case against holder of Public
Office .
115. Based on this, the Commission finds that the Victim 's right to have her cause heard
has not been violated by the appointment of a Judge as a member of the
Independent Panel , and further the Victim 's right to have her cause heard was
exercised before the courts in the Respondent State and is provided for in the
Independent Panel's Rules.
116. Consequently, the Commission finds that Article 7( 1} of the African Charter has not
been violated in the present Communication.
Violation of Article 1 of the African Charter
117. Regarding Article 1 of the Charter, which provides that "the parties to the present
Charter shall recognize the rights, duties and freedoms enshrined in this Chapter
and shall undertake to adopt legislative or other measures to give effect to them,"
the Commission notes from its jurisprudence that "Article 1 gives the Charter the
legally binding character always attributed to international treaties of this sort.
Therefore, a violation of any provision of the Charter automatically means a violation
of Article 1."44
40 Public Protector v. Speaker of the National Assembly, Western Cape Division, Cape Town, Case 2107/21, 28 July
2021
Speaker of the National Assembly v. Public Protector and Others: Democratic Allianc~
ic Protector and
Others [2022) ZACC, 04 February 2022
42 Communication 286/2004: Dino Noca v. Democratic Republic of the Congo (
HPR,~am&_pfp~l.90
43 Id, paragraph 193
~-----~\,
41
<._;o;;~~
44
Communications 147/95 and 149/96: Sir Dawda K. Jawara v. The Gambia (2000)
~\'.
,;. \ '.
! t"'
. £
21
ii
AINt
~
pE.\)V\.
118. In light of the fact that the Commission has not found a violation of Articles 7(1) and
26, the Commission similarly holds that Article 1 of the African Charter has not been
violated by the Respondent State in the present Communication.
DECISION OF THE COMMISSION ON THE MERITS:
119. In light of the foregoing, the African Commission on Human and Peoples' Rights
finds that the Respondent State is not in breach of its obligatio
7( 1) and 26 of the African Charter with regard to the present Co
Adopted during the 82 nd Ordinary Session, held virtually from
March 2025
22