“In accordance with section 194(1) of the Constitution, a commissioner may be removed from office: a) on the ground of misconduct, incapacity or incompetence; 2) a finding to the effect by a committee of the National Assembly; and c) the adoption by the Assembly of a resolution calling for that person’s removal from office. Further, in accordance with section 194(2) of the Constitution, the resolution concerning dismissal of a commissioner must be adopted with a supporting vote of a majority of the members of the Assembly.
The SCA notes that the grounds of ‘misconduct’ and ‘incompetence’ are not defined in the law, and there is not a requirement that the ground of ‘incapacity’ be supported by appropriate medical
evidence. The SCA notes that the SAHRC reports that these terms, although not defined in statute, are defined through jurisprudence. The SCA invites the SAHRC to provide further details in this regard at its next review.
Further, there is no specificity in the law about the process to be employed by the National Assembly in coming to a resolution calling for a commissioner’s removal, including who may propose such dismissal, whether a public hearing is to be held, and what mechanisms exist for appeal of a decision. The SCA notes that the SAHRC reports that these details are provided in applicable regulations of Parliament. However, this has not been provided to the SCA at this time. The SCA invites the SAHRC to provide a copy of these regulations during its next review.
The SCA is of the view that in order to address the Paris Principles requirements for a stable mandate, which is important in reinforcing independence, the enabling legislation of an NHRI must contain an independent and objective dismissal process, similar to that accorded to members of other independent State agencies.
The grounds for dismissal must be clearly defined and appropriately confined to only those actions which impact adversely on the capacity of the member to fulfil their mandate. Where appropriate, the legislation should specify that the application of a particular ground must be supported by a decision of an independent body with appropriate jurisdiction. The dismissal must be made in strict conformity with all the substantive and procedural requirements as prescribed by law. It should not be allowed based solely on the discretion of appointing authorities.
The SCA is of the view that such requirements ensure the security of tenure of the members of the governing body and are essential to ensure the independence of, and public confidence in, the senior leadership of an NHRI.
The SCA requests that the SAHRC provide the information requested above during its next review by the SCA.”