Mkhwebane took impeachment process to the AU and lost there too

The AU human rights body says South Africa’s legal system provided adequate remedies, dismissing former public protector Busisiwe Mkhwebane’s challenge to parliament’s impeachment process.

In a decision adopted during its 82nd ordinary session, held from February 25 2025 to March 11 2025, and communicated to the parties on July 18 this year, the commission dismissed Mkhwebane’s complaint that South Africa breached the African Charter on Human and Peoples’ Rights through parliament’s section 194 process, which ultimately led to her removal from office.

The ruling suggests South Africa’s constitutional framework for removing public office-bearers is consistent with the African Charter and that the country’s legal safeguards are sufficient to protect judicial independence and the right to a fair hearing.

The commission concluded that parliament’s rules governing the removal of chapter 9 office-bearers, including the appointment of a judge to an independent panel that determines whether there is a prima facie case for an inquiry, do not undermine judicial independence or the separation of powers.

“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,” the ruling said.

The commission found that the constitution contains a legal framework that protects the independence of the judiciary and that parliament’s rules require consultation with the chief justice before a judge may be appointed to an independent panel.

It noted that the panel established in Mkhwebane’s case included a retired judge, undermining her argument that judicial independence had been compromised.

It found that Mkhwebane had been afforded access to South Africa’s courts, including the Constitutional Court, and that parliament’s rules gave her an opportunity to respond to allegations against her before the independent panel.

It held that South Africa had not violated articles 1, 7(1) or 26 of the African Charter as alleged by Mkhwebane.

The ruling comes as parliament’s separate section 89 impeachment process involving President Cyril Ramaphosa remains on hold.

The Constitutional Court ordered parliament in May to establish an impeachment committee following the independent panel’s finding that there was prima facie evidence the president may have committed serious violations of the constitution and misconduct arising from the Phala Phala matter.

However, the Western Cape High Court this month interdicted parliament from proceeding with the inquiry pending Ramaphosa’s application to review and set aside the panel’s findings. That review is scheduled to be heard from September 2 to 4.

The EFF and ATM have applied to the Western Cape High Court to appeal against the decision to halt the impeachment proceedings.

Although the cases arise under different constitutional provisions and concern different factual circumstances, both rely on parliament appointing an independent panel to determine whether sufficient evidence exists before a full parliamentary inquiry can proceed.

Mkhwebane’s case concerned her removal under section 194 as public protector, while the Ramaphosa matter arises under section 89 following the panel’s findings relating to the Phala Phala controversy.

The commission also rejected Mkhwebane’s attempt to challenge the Constitutional Court’s interpretation of parliament’s rules, saying it could not act as an appeal court over domestic judgments.

“The commission declines to assess whether the Constitutional Court misdirected itself and violated article 26 of the charter,” it said, adding that it “has no appellate jurisdiction over cases decided by courts in the state parties”.

The commission said its mandate is limited to determining whether states have violated rights protected under the African Charter and not whether domestic courts correctly interpreted national law.

“In no case would the commission’s consideration of the communication involve reviewing whether national courts erred or not,” the ruling said.