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There should be no sacred cows in the judiciary after Mkhwebane’s impeachment and removal

Omphemetse S Sibanda
By Omphemetse S Sibanda
14 Sep 2023
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It is essential to assess how Busisiwe Mkhwebane’s removal will affect other major institutions, including the judiciary and other Chapter 9 bodies. Equally critical is the examination of how her impeachment might influence public trust in the government.

In a historic move, President Cyril Ramaphosa, in accordance with Section 194(3)(b) of the Constitution, removed advocate Busisiwe Mkhwebane from the Office of the Public Protector based on grounds of misconduct and incompetence.

This decision, which followed the Section 194 Committee report and a two-thirds majority vote by members of the National Assembly, has far-reaching implications not only for Mkhwebane herself, but also for South Africa’s democratic institutions and the public’s trust in the government.

Mkhwebane’s impeachment marks a significant milestone in South Africa’s history, particularly for its nascent Chapter 9 institutions.

The journey to this point has been fraught with legal battles, with courtrooms witnessing numerous petitions filed by Mkhwebane and those affected by her reports. This process has captivated the nation’s attention for months, and its consequences will be a subject of discussion for decades to come, both in constitutional law classrooms and administrative law debates.

However, the removal of advocate Mkhwebane should not be celebrated without considering its broader impact on the accountability of public figures and representatives.

It is essential to assess how this move will affect other major institutions, including the judiciary and other Chapter 9 bodies. Equally critical is the examination of how Mkhwebane’s impeachment might influence public trust in the government. This historic event inevitably raises concerns about the role of politics in critical accountability appointments, and questions as to whether it will erode or strengthen constitutional guarantees.

It is crucial not to underestimate the potential for democratic dysfunction, polarisation or weakened checks on executive power and the rule of law within impeachment regimes.

The impact of Mkhwebane’s removal on trust in government and democratic institutions will largely depend on one’s perspective. Political parties like the EFF and ATM may view it as a sign of authoritarian backsliding in African democracies and a threat to constitutional guarantees. In contrast, the ANC may argue that it signifies the functioning of democracy and constitutionalism in action.

In my opinion, it is crucial not to underestimate the potential for democratic dysfunction, polarisation or weakened checks on executive power and the rule of law within impeachment regimes. The lessons learnt from the Mkhwebane impeachment should serve as a cautionary tale for all branches of government, including the judiciary.

While judges enjoy a universal belief in their duty to be right, there are times when their misunderstanding or misapplication of the law may be material. However, unlike Mkhwebane, judicial officers have the recourse of review or appeal to correct their mistakes without facing removal.

Luckily for judges, a universally cardinal belief, to quote the American Bar Association, is that “it’s a judge’s job to be right, and ultimately they wear the robes, not you”.

The “mere legal error” doctrine, as discussed in Cynthia Gray’s article, “The Line Between Legal Error and Judicial Misconduct: Balancing Judicial Independence and Accountability”, published by the Hofstra Law Review in 2004, recognises that making mistakes is inherent to human nature and inevitable in the context of judicial decision-making.

“Making mistakes is part of being human and is inevitable in the context in which most judicial decision-making takes place,” argues Gray.

Challenges to many of Mkhwebane’s reports centred on legal errors or misapplications of the law, raising the question of whether the same principles of judicial discipline for legal error should apply to the Public Protector and other heads of Chapter 9 institutions, considering their role in upholding justice and accountability.

It is thus interesting to know if the argument that “judicial discipline for legal error does not always or even often result in removal but may simply lead to a reprimand, censure, or suspension” should not apply to the Public Protector and other heads of Chapter 9 institutions since they are part of judicial discipline.

Profound implications


Without suggesting that Mkhwebane’s removal is flawed, there are profound implications for the country’s institutions and trust in the government. This historic impeachment and removal should serve as a reminder that accountability and checks on power are essential for a thriving democracy, and that the lessons learnt from this impeachment should not be confined to the realm of the Office of the Public Protector but should resonate throughout all branches of government.

Read more in Daily Maverick: The lessons learnt from the process to remove Busisiwe Mkhwebane from office

A critical re-evaluation following the Mkhwebane era is imperative, as political accountability, grounded in the foundational values and principles of the Constitution, relies on institutions like the Office of the Public Protector.

Consequently, it is now essential to prioritise the security of tenure for Public Protectors in the pursuit of accountability and the safeguarding of institutions tasked with holding the government accountable. There should be no sacred cow within the judiciary after Mkhwebane’s impeachment and removal. DM

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