Help! Mkhwebane turns to African Commission on Human and Peoples’ Rights

In yet another attempt to halt an impeachment process, public protector Busisiwe Mkhwebane has approached the African Commission on Human and Peoples’ Rights, accusing SA of violating her right of access to independent courts by seeking her removal.

Her domestic litigation over the rules governing her impeachment reached the end of the road in February when the Constitutional Court cleared the path for an impeachment process in parliament. This is scheduled to begin in July. A decision by President Cyril Ramaphosa on whether she will be suspended is also imminent. 

But Mkhwebane insists the Constitutional Court judgment was wrong. In her papers to the African Commission, Mkhwebane, apparently cited in her individual capacity, referred to articles 7(1) and 26 of the African Charter on Human and Peoples’ Rights. These articles refer to the right of an individual to “have his cause heard” and a state’s duty to guarantee independent courts.

She has asked the commission to order SA to pay her R50m in compensation for the legal costs she has incurred regarding the impeachment process. In her urgent approach to the commission, called a “communication”, she has also asked for an interim measure: an order “to suspend the process to remove the complainant from office” while her complaint is being determined.

“It is trite that every communication should indicate if the victim’s life, personal integrity, or health is in imminent danger ... It is evident that the complainant’s personal integrity and/or human dignity is in imminent danger for the reasons to follow,” said Mkhwebane in her affidavit.

If the interim measure was not taken, her human dignity would be violated because she would be removed from office using impeachment rules that were in violation of the African Charter, she said. 

“The matter is so important to the human dignity of the complainant, and it is in the interests of justice and that of the complainant that the hearing of this complaint be on urgent basis,” said Mkhwebane, adding that while the matter had been pending in SA’s Constitutional Court, the parliamentary impeachment process had been suspended. 

Mkhwebane said since the matter went all the way to the apex court, she had “exhausted the local remedies” available within SA, a requirement for admission before the commission. She did not mention that she has applied to the Constitutional Court to rescind its order refusing an earlier application to rescind the February judgment and that there is a judgment pending at the Western Cape High Court in which Mkhwebane sought an interim interdict to the impeachment process.

Mkhwebane said because the Constitutional Court “cannot be correct” in its conclusions on the impeachment rules, the highest court had violated the obligation of SA to guarantee independent courts. Mkhwebane’s human dignity had also been violated and she had to employ attorneys and advocates to litigate in the high court and Constitutional Court. “The complainant also suffered emotionally and financially,” she said.

However, News24 reported last week that, in answer to questions from parliament, the office of the public protector said the fiscus had paid R14.9m for the public protector’s impeachment litigation.

It is unclear how the sum of R50m was arrived at and, as the communication was apparently made in her personal capacity, whether the compensation sought is to recoup some of the costs lost by the public protector’s office from the litigation or for Mkhwebane’s personal benefit.

The public protector’s spokesperson, Oupa Segalwe, said "on advice, the PP will not comment."