How to impeach the protector

 

 

After the Constitutional Court judgment against her, removing Busisiwe Mkhwebane from her position is the obvious next step. But it is a difficult process — it was designed to be, to protect the independence of the public watchdog.


NEWS ANALYSIS

The country’s highest court — from which there is no appeal or review — has awarded both punitive and personal costs against public protector Busisiwe Mkhwebane. This is a mark of disapproval of a constitutional office-bearer so severe and so rare that in his dissenting judgment Chief Justice Mogoeng Mogoeng even described it as a “novelty”.

The majority judgment, however, explained why it was appropriate: “The punitive costs mechanism exists to counteract reprehensible behaviour on the part of the litigant.” This had been the case since “more than 100 years ago, [when] Innes CJ stated the principle,” said the court.

In refusing to interfere in the costs order of the high court, the Constitutional Court endorsed its finding that Mkhwebane had acted in bad faith and did “not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice”. The Constitutional Court went further, saying Mkhwebane had told “falsehoods” and had given contradictory explanations for why she had meetings with the president and had not disclosed them in her report. It also implicated her competence, saying her “entire model of investigation was flawed”.

After such a judgment, Mkhwebane’s impeachment is the obvious next step. But removing a public protector is a difficult process — it was designed to be, to protect the independence of her office.

The Constitution says that the public protector may be removed only by a motion supported by a two-thirds majority of the National Assembly — a minimum of 267 “ayes”, say the Rules of Parliament. She may be removed only on the grounds of incompetence, misconduct or lack of capacity; and only after a finding of one of these by a committee of Parliament.

Then, once the process of the committee is under way, the president has the power to suspend the public protector, says the Constitution.

The Constitution does not specify which committee should investigate. In this case, the complaint from the Democratic Alliance has been sent to the justice committee. Nor does the Constitution establish any rules for how the committee proceeds.

Parliament’s rules also do not cater for this process — which may be where the problem arises.

There is a judgment from the Constitutional Court that deals with how to impeach the president under section 89 of the Constitution. The public protector is not the president, but the wording of the two sections is very similar.


In the 2018 case between the Economic Freedom Fighters and the speaker of Parliament, the Constitutional Court said that, before any process to impeach the president, there must be a factual inquiry — to decide whether there has been misconduct or incompetence.

Importantly, the judgment said that it would be “impossible” to impeach the president “without rules defining the entire process”. And these cannot be ad hoc procedures drawn from rules that apply elsewhere, said the judgment.

As a result, Parliament has made such rules for impeaching the president. They were announced in August 2018. But there are no rules specifically in place for impeachment of the public protector. Strictly speaking, the EFF judgment does not apply to the public protector, because it was about the president. But if Parliament were to go ahead with a process that is not in line with the judgment, it would risk a court challenge by Mkhwebane.

To be safe, Parliament would probably have to adopt a new set of rules for the public protector, which could be largely based on the ones for the president. They could not be identical, however, because while the provisions are very similar, they are not identical.

The rules for the president provide for a preliminary investigation by a panel of three “fit and proper, competent, experienced and respected South Africans, which may include a judge, and who collectively possess the necessary legal competence and experience”.

The panel would assess if there is enough evidence to go ahead with an impeachment process and must do so within 30 days. The House would then decide whether to proceed with an inquiry, and if it does there must be an impeachment committee “to establish the veracity and, where required, the seriousness of the charges”.

This committee then makes a recommendation to Parliament, with a report that includes all views expressed in the committee. Then the report must be debated and voted on. It’s an intricate process and the rules — even the ones for a presidential impeachment — have never been tested (cue intervening court cases). And, even once all that has been done, there is still the politics of it all in gathering a two-thirds majority. A recommendation from the independent panel or the impeachment committee is not binding, say the rules.

The other path that some people are suggesting as a way to remove Mkhwebane — through a successful application to strike her off the roll of advocates — would not necessarily automatically disqualify her from being the public protector. Being an advocate is only one of a number of qualifications that allow someone to be appointed public protector. Ten years of experience in the public service is also sufficient. An argument could be made that, if she was appointed on the basis that she was an admitted advocate, she would be disqualified for the job if she were struck off. But it is more likely that a striking off would boost the case that she is not fit and proper, rather than itself being enough.

The system was designed to make her removal this difficult. That’s how the independence of the public watchdog is guaranteed from political interference.

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever. But it comes at a cost. Advertisers are cancelling campaigns, and our live events have come to an abrupt halt. Our income has been slashed.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years. We’ve survived thanks to the support of our readers, we will need you to help us get through this.

To help us ensure another 35 future years of fiercely independent journalism, please subscribe.

Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian
Advertising

Where is the deputy president?

David Mabuza is hard at work — it’s just not taking place in the public eye. The rumblings and discussion in the ANC are about factions in the ruling party, succession and ousting him

Zuma turns on judiciary as trial nears

Former president says pre-trial correspondence is part of another plot

High court declares Dudu Myeni delinquent

Disgraced former SAA chairperson Dudu Myeni has been declared a delinquent director by the...

SANDF inquiry clears soldiers of the death of Collins Khosa

The board of inquiry also found that it was Khosa and his brother-in-law Thabiso Muvhango who caused the altercation with the defence force members
Advertising

Press Releases

Obituary: Mohammed Tikly

His legacy will live on in the vision he shared for a brighter more socially just future, in which racism and discrimination are things of the past

Openview, now powered by two million homes

The future of free-to-air satellite TV is celebrating having two million viewers by giving away two homes worth R2-million

Road to recovery for the tourism sector: The South African perspective

The best-case scenario is that South Africa's tourism sector’s recovery will only begin in earnest towards the end of this year

What Africa can learn from Cuba in combating the Covid-19 pandemic

Africa should abandon the neoliberal path to be able to deal with Covid-19 and other health system challenges likely to emerge in future

Coexisting with Covid-19: Saving lives and the economy in India

A staggered exit from the lockdown accompanied by stepped-up testing to cover every district is necessary for India right now

Covid-19: Eased lockdown and rule of law Webinar

If you are arrested and fined in lockdown, you do get a criminal record if you pay the admission of guilt fine

Covid-19 and Frontline Workers

Who is caring for the healthcare workers? 'Working together is how we are going to get through this. It’s not just a marathon, it’s a relay'.

PPS webinar Part 2: Small business, big risk

The risks that businesses face and how they can be dealt with are something all business owners should be well acquainted with

The best local and international journalism

handpicked and in your inbox every weekday