Mkhwebane’s suspension ‘could be in conflict’ with international conventions

The process followed to suspend public protector advocate Busisiwe Mkhwebane from office, could be in conflict with international conventions, if testimony given by Zambia’s longest-serving public protector, Caroline Chuma Zulu-Sokoni, is anything to go by.

Zulu-Sokoni served as the Southern Africa regional coordinator of the African Ombudsman and Mediators Association, Africa president of the Austria-based International Ombudsman Institute and is its current treasurer.

Using this experience in her testimony before the Committee for Section 194 inquiry into Mkhwebane’s fitness to hold office, Zulu-Sokoni outlined the mandate and international principles governing the role of a public protector.

Venice principles

Key among internationally accepted conventions, which could – in the case of Mkhwebane – put South Africa on a collision course with global standards, include the Venice Principles.

The principles include:

• Guaranteeing of the functional immunity; and
• A clause urging states against taking any action aimed at or resulting in the suppression of the ombud (public protector) institution – discouraging governments from using one branch of state to exercise disciplinary control over the public protector.

The spotlight is currently in parliament falling on the separation of powers among the three organs of state.

‘Maladministration’

Responding to questions from advocate Dali Mpofu for Mkhwebane, Zulu-Sokoni said the office of the public protector was established as “a corporate soul”, charged to investigate maladministration, protection and defence of human rights – accountable to parliament.

“The office of the ombudsman was not intended to be the object of disciplinary or administrative censure by all three branches of the state, because that weakens the independence of the office,” said Zulu-Sokoni.

“The [ombud] is the people’s protector and defender of rights – an institution for the vulnerable to hold government to account,” she added.

Hearing should precede suspension

Critical of the suspension of Mkhwebane by President Cyril Ramaphosa before the constitution of a disciplinary hearing, Zulu-Sokoni said: “Before a person is suspended, there should be a hearing into charges against that person.

“She should be given a fair hearing to ensure ultimate justice and fair play. The legislature should be able to assist an officer who is accountable to it – checking on whether there has been fairness and accord the necessary protection.”

READ MORE: Mkhwebane inquiry: Future public protectors will worry about being impeached – witness

‘Hurried process unlawful’

Quoting a court judgment which ruled in favour of Mkhwebane, Mpofu said: “This is what one of our courts has ruled: ‘In our view, the hurried nature of the suspension of the applicant in these circumstances – not withstanding that the judgment of the full bench was looming on the same subject matter – leads this court to a conclusion that the suspension may have been retaliatory and hence unlawful.

“It was certainly a tainted bias of a disqualifying kind and perhaps improper motive. In our view, the president did not bring an unbiased mind to bear. He was conflicted when he suspended the applicant.”

‘Parliament ignored facts’

Mpofu added: “Parliament washed its hands and wanted nothing to do with the judgment which ruled in her favour.

“Parliament said issue of the suspension – retaliatory or not and inspired by 31 questions – had nothing to do with them, having washed its hands in biblical terms and unable to intervene.

“It is like going to a police station to report that someone has just stabbed you and they say we have nothing to do with that – a body that is supposed to protect you,” Mpofu said.

The hearing continues.

NOW READ: Top five moments from Mkhwebane’s impeachment hearings

Read more on these topics