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.
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.