African Union Human Rights Body Affirms South Africa’s Legal Process in Mkhwebane Case
The African Commission on Human and Peoples’ Rights (ACHPR), the AU’s principal human rights body, has concluded that South Africa’s removal of former Public Protector Busisiwe Mkhwebane did not violate the African Charter on Human and Peoples’ Rights. The decision was adopted during the Commission’s 82nd ordinary session, held from 25 February to 11 March 2025, and the outcome was communicated to the parties on 18 July 2025.
Background of the Complaint
Mkhwebane lodged a communication alleging that Parliament’s use of Section 194 of the South African Constitution to initiate her removal breached:
- Article 1 – the obligation to respect and ensure rights;
- Article 7(1) – the right to a fair hearing;
- Article 26 – the independence of the judiciary and separation of powers.
She argued that the appointment of a judge to the independent panel established under Parliament’s Chapter 9 rules compromised judicial independence.
Commission’s Findings
After reviewing the substantive and procedural aspects of the case, the ACHPR reached several key conclusions:
- The Commission found that South Africa’s constitutional framework provides adequate remedies for individuals facing removal, satisfying the requirements of Article 1.
- Mkhwebane was afforded access to the South African courts, including the Constitutional Court, and was given an opportunity to respond to the allegations before the independent panel, fulfilling the fair‑hearing guarantees of Article 7(1).
- Regarding Article 26, the Commission determined that the inclusion of a retired judge on the panel does not undermine judicial independence. The decision stressed that Parliament’s rules require consultation with the Chief Justice before a judge can be appointed to such a body, reinforcing the separation of powers.
- The Commission explicitly declined to act as an appellate authority on domestic judgments, stating it has no jurisdiction to review whether the Constitutional Court correctly interpreted national law.
In its judgment, the Commission noted:
“The appointment of a judge to the independent body does not violate the principle of separation of powers which ensures the independence of the judiciary and therefore does not constitute a violation of Article 26 of the African Charter.”
Implications for Ongoing Proceedings
The ruling comes amid parallel impeachment proceedings against President Cyril Ramaphosa under Section 89 of the Constitution, which also rely on an independent panel to assess prima facie evidence before a full parliamentary inquiry. The Western Cape High Court recently barred Parliament from continuing the inquiry pending Ramaphosa’s application to review the panel’s findings, with a hearing scheduled for 2‑4 September 2025. The Economic Freedom Fighters (EFF) and African Transformation Movement (ATM) have appealed that interim order to the same court.
Although the two cases involve different constitutional provisions—Section 194 for the Public Protector’s removal and Section 89 for presidential impeachment—they share a common procedural mechanism: the appointment of an independent panel to determine whether sufficient evidence exists to proceed.
Commission’s Limits and Authority
The ACHPR reiterated that its mandate is confined to assessing whether a state has violated rights protected by the African Charter. It does not sit as a court of appeal over national judgments. As the Commission stated:
“In no case would the Commission’s examination of the communication include an examination of whether or not national courts have committed an error.”
Conclusion
The African Commission’s decision affirms that South Africa’s legal mechanisms for removing high‑ranking public officials align with regional human rights standards. By upholding the constitutionality of the Section 194 process and clarifying the limits of its own jurisdiction, the Commission provides guidance for both domestic stakeholders and international observers monitoring the balance between accountability and judicial independence in South Africa.
Sources:
- African Commission on Human and Peoples’ Rights, Decision on Communication No. XXX/2024 (82nd Ordinary Session, Feb‑Mar 2025), communicated 18 July 2025. achpr.org
- African Charter on Human and Peoples’ Rights, Articles 1, 7(1), 26. achpr.org
- Constitution of the Republic of South Africa, 1996, Sections 194 and 89. justice.gov.za
- Western Cape High Court order, 2 September 2025 (case number XXXXX/2025).
