The process of suspending public protector advocate Busisiwe Mkhwebane from office could be in conflict with international conventions, if the testimony given by Zambia’s longest-serving public protector, Caroline Chuma Zulu-Sokoni, is anything to go by.
Zulu-Sokoni served as the South Africa regional coordinator of the African Association of Ombudsman and Mediators, Africa president of the Austria-based International Ombudsman Institute and is the current treasurer.
Using this experience in her testimony before the Committee for the section 194 inquiry into Mkhwebane’s fitness to hold office, Zulu-Sokoni outlined the international mandate and principles governing the public protector’s role.
principle of Venice
Key among the internationally accepted conventions, which could – in Mkhwebane’s case – put South Africa on a collision course with global standards, include the Venice Principles.
These principles include: -Ensuring functional immunity; and -A clause urging the state not to take action aimed at or resulting in the death of the ombud (public protector) institution – discouraging the government from using one branch of the state to exercise disciplinary control through the public protector.
The spotlight is now on the parliament because of the separation of powers between the three state organs.
‘Administrative issues’
Responding to questions from Dali Mpofu’s lawyer for Mkhwebane, Zulu-Sokoni said that the public protector’s office was established as the “soul of the company”, charged with investigating maladministration, protection and defense of human rights – accountable to parliament.
“The office of the ombudsman is not intended to be the object of disciplinary or administrative censure by all three branches of the state, because it weakens the independence of the office,” said Zulu-Sokoni.
“At [ombud] as the protector and defender of the people’s rights – an institution for the vulnerable to the responsibilities of government,” he said.
A hearing must precede the adjournment
Critical of Mkhwebane’s suspension by President Cyril Ramaphosa before the constitution of the disciplinary hearing, Zulu-Sokoni said: “Before a person is suspended, there should be a hearing into the charges against that person.
“They must be heard fairly to ensure justice and fair play. “Legislature must be able to help the responsible officials – check that there is justice and provide the necessary protection.”
READ MORE: Mkhwebane inquiry: Future public protection will be worried if accused – witness
‘Illegal speedy process;’
Citing the judgment of the court that ruled for Mkhwebane, Mpofu said: “This is one of our courts that decided: ‘In our opinion, the hasty nature of the suspension of the petitioner in the circumstances – does not go against the decision of the court. The full bench is on the same subject – leads this court to the conclusion that the suspension is vindictive and illegal.
“This is definitely an inappropriate bias and maybe an inappropriate motive. “In his opinion, the president does not bring an impartial mind. He was conflicted when he suspended the applicant.
‘Parliament ignores facts’
Mpofu added: “Parliament washed its hands and did not want anything to do with the decision that ruled for them. “Parliament said the issue of suspension – revenge or not and inspired by the 31 questions – has nothing to do with them, has washed its hands in terms of the Book Holy and cannot intervene.
“It’s like going to the police station to report that someone stabbed you and saying it’s nothing to do with it – your body is supposed to protect you,” Mpofu said. The hearing continues.
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