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EFF and Mkhwebane welcome high court judgment slamming some of parliament’s impeachment rules

Public protector Busisiwe Mkhwebane and the Economic Freedom Fighters have welcomed the Western Cape high court ruling that found that sections of parliament’s impeachment rules were unconstitutional.

The Democratic Alliance submitted a motion to initiate proceedings to determine whether Mkhwebane was fit to hold office in 2019 and again in 2020.

While the court on Wednesday dismissed Mkhwebane’s application to declare Chapter 9 impeachment rules unconstitutional, its ruling, delivered by Judge Elizabeth Baartman, raised concerns about some of the processes in parliament’s impeachment proceedings.

After Wednesday’s ruling, Mkhwebane called for the impeachment process to be halted with immediate effect.

The National Assembly should first amend the rules before continuing with the process, the public protector’s spokesperson, Oupa Segalwe, said.

“To continue on the basis of the old unamended and partly unconstitutional rules as if nothing has happened would constitute an attack on the authority of the courts rule of law in the constitutional rights of the public protector,” he added.

The judgment found it unconstitutional that Mkhwebane is not allowed legal representation in the impeachment process.

The EFF in a statement on Thursday that it agreed with this ruling.

The high court ruled that judges should not be part of an independent panel deciding whether there was a prima facie case against Mkhwebane. It said the panel “must consist of three proper, competent, experienced and respected South Africans who collectively possess the necessary legal competence and experience”.

“The speaker must appoint the panel, after giving political parties represented in the National Assembly reasonable opportunity to put forward nominees for consideration for the panel, and after the speaker has given due consideration to all persons nominated,” the judgment read.

“It is of further concern that the judiciary is called upon to provide the National Assembly with legal expertise that is readily available in the profession. As of late, the judiciary has come under attack for being partisan to political parties or factions. Judicial involvement in this process feeds into that narrative.”

In its statement, the EFF said it “agrees that the involvement of a judge in a parliamentary internal process undermined the separation of powers and therefore was unconstitutional. Based on these findings, we demand that the fishing expedition currently underway in parliament should be immediately halted and presiding officers of parliament are reminded that they are not parliament.”

The party said parliament’s presiding officers “must admit that the processes followed thus far are unconstitutional and should therefore stop the activities of the committee established to hound the public protector”.

“Subjecting her to a long litigious process will deprive her office of the necessary attention it deserves to protect vulnerable South Africans, the majority of whom cannot afford to approach courts for justice,” the party added.

The impeachment process against Mkhwebane has already progressed. In March, an independent panel chaired by former constitutional court judge Bess Nkabinde found that the public protector was mistaken in thinking that legal review was the answer every time when she erred or was found incompetent. It concluded that her removal from office was the appropriate remedy.

In a report to parliament, the panel pointed to prima facie evidence of repeated incompetence and misconduct on Mkhwebane’s part and recommended that the legislature refer the matter, in terms of section 194 of the Constitution, to a committee of the legislature for further investigation.

The office of the public protector is one of six independent state institutions set up in terms of the constitution to support and defend democracy.

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Eyaaz Matwadia
Eyaaz Matwadia
Eyaaz Matwadia is a member of the Mail & Guardian's online team.

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