ANALYSIS

Removing public protector — a long and slow road, never before travelled

By Marianne Merten 26 August 2019

Public Protector Busisiwe Mkhwebane. (Photo: Gallo Images / Netwerk24 / Felix Dlangamandla)

Anyone thinking Public Protector Busisiwe Mkhwebane will speedily be removed from office by a parliamentary inquiry, think again. The process must start right at the beginning — the rules. And those do not yet exist.

This story was updated after publishing. See below

On Tuesday, the parliamentary justice committee begins discussing what to do with the DA request for an inquiry into the fitness for office of Public Protector Busisiwe Mkhwebane. It’s an initial deliberation that arises from the lack of rules for such an inquiry — and the urgent need to draft such rules, and how best to go about that.

The rules vacuum was highlighted during the programming committee meeting last Thursday (22 August 2019). A letter to the justice committee has already been fired off by National Assembly Speaker Thandi Modise, who indicated her correspondence meant MPs had a choice: the committee could decide what to do, or it could ask the rules committee to write inquiry rules.

Or, as Modise told DA Chief Whip John Steenhuisen after he said he would submit some draft rules to her:

We have already started the process. You have awakened us to the fact there (were) actually no rules”. A little earlier Steenhuisen had argued that it was important to “firewall ourselves from the pitfalls” of court interdict action:

I will make recommendations on a procedure that will set up unequivocal rules… What we don’t want is the justice committee to start process and then be interdicted”.

Thursday’s programming committee discussions were a consequence of the urgent interdict application against Parliament by advocate Nomgcobo Jiba, who is fighting to keep her top prosecutions job. The “Jiba matter” as it is known in parliamentary corridors, has alerted the national legislature to the importance of getting its processes right.

A day earlier, on 21 August, Parliament had agreed to delay its consideration to 19 September whether to endorse, or overturn, President Cyril Ramaphosa’s sacking of Jiba, a National Prosecuting Authority (NPA) deputy director of public prosecutions, and Lawrence Mrwebi, who headed the Specialised Commercial Crimes Unit. Such a process is required within 30 days, or as soon as possible, after the presidential decision, according to the NPA Act. But Jiba is fighting for her job, and benefits, and had brought the urgent interdict pending her taking on judicial review the Mokgoro inquiry report on the basis of which the president dismissed her and Mwrebi.

At that committee meeting, Modise did not mince her words, saying Parliament would not be told what to do, or that it must drop issues that are clearly within its constitutional oversight responsibilities. If Parliament were ever to drop a matter, it would be because it was in the people’s interest.

While Parliament was ready to listen to arguments to stay its own processes pending the court processes — after all, that was only fair in a constitutional democracy — a key factor was the tone of letters directed to the institution.

If you write to us in a manner ‘Parliament is stupid. You have no right’, we must resist. But if you write to us (in a different tone) you find us more ready, more willing to give space… The tone of the letters from the Jiba group is far from the tone of that of the public protector,” said Modise.

It’s a clear reference to the July letter Mkhwebane wrote, chastising Modise for referring the DA request for her removal to the justice committee. In a bruising 12-page letter the public protector told the Speaker she had violated the Constitution for failing to protect her and for not admonishing MPs, according to City Press.

And it’s signal as clear as ever that Mkhwebane has pushed the wrong buttons in what has become a public campaign that has taken her from Tembisa, Gauteng, to Cape Town in two days, to assert the unassailability of her powers while styling criticism of her conduct as unfair, prejudiced and biased.

Coincidentally, the Constitution in Section 194 allows for the removal of the public protector, and other heads and members of Chapter 9 institutions supporting democracy. And the May 2019 request for a parliamentary inquiry into Mkhwebane’s removal is Steenhuisen’s second. The previous one was kicked down the line from late 2017 to February 2019 when the justice committee decided it was “premature” to act, given the Constitutional Court appeal against her personal cost order in the Absa Bankorp report saga. Mkhwebane lost that on 22 July 2019.

But agreeing to abide by the court processes meant Parliament’s justice committee programme was turned upside down. And so the discussions on the public protector removal inquiry were brought forward from the initial date of 3 September.

Justice Committee chairperson Bulelani Magwanishe confirmed the new date, and told Daily Maverick MPs would discuss this lack of rules on Tuesday:

What we need to discuss are rules. The rules committee writes the rules.”

It is understood the ANC study group on the justice committee would discuss options on Monday, indicating the rules matter is far from resolved. By that time the set of rule proposals Steenhuisen had promised the Speaker may well forwarded to either the justice committee, the rules committee or both.

But all round, there’s agreement that the lack of rules must be fixed before the start of any possible inquiry.

The options are twofold. One, Rule 167 on committees’ general powers allows a committee “to determine its own working arrangements” and to “summon any person to appear before it to give evidence on oath or affirmation, or to produce documents”.

It was on the basis of this rule that the public enterprises committee held its 2017/18 inquiry into Eskom State Capture, ending with a scathing report on governance and financial management failures not only at the power utility, but also the public enterprises ministry.

The whole issue also could be referred to the rules committee for a completely new rule related to Section 194 of the Constitution on removing Chapter 9 institution bosses such as the public protector or auditor-general and members of commissions such as the South African Human Rights Commission (SAHRC) or Electoral Commission (IEC).

Such processes may take time; a rules review dragged out over years and remained not quite completed when the last Parliament rose before the May 2019 elections.

In other instances, action can happen much faster. New rules for evicting rowdy MPs were adopted at the end of July 2015, some six months after the process began amid cross-party political agreement. The EFF, because this rule was drafted predominantly for it, did not support it.

Sometimes courts had to become involved. After the rules committee failed to finalise rules to give effect to Section 102 of the Constitution, or motions of no confidence, then DA parliamentary leader Lindiwe Mazibuko initiated legal action. Within eight months of the August 2013 Constitutional Court judgment, rules were in place. It took a little longer for the rules to give effect to Section 89 of the Constitution, or the removal of a president, which is colloquially known as impeachment. While the Constitutional Court in late December 2017 found the lack of parliamentary rules needed to be fixed, that was done by 22 November 2018, or just about 11 months later.

All that is available to guide Parliament right now is Section 194 of the Constitution. It states heads of Chapter 9 institutions and members of Chapter 9 commissions may be removed from office for “misconduct, incapacity or incompetence”. A “committee of the National Assembly must come to such a finding” for removal from office, which then must be brought to the House as a resolution. The removal of a public protector and the auditor-general requires a two-thirds majority. For others, such as members of the SAHRC or IEC, it’s a simple majority.

Parliamentary practice has established a certain amount of precedence that could influence new rulemaking.

A substantive motion, or one that furnishes evidence-based reasons for removal, is likely to be required for any inquiry into the fitness for office of the public protector. This would be in keeping with the seriousness of such a move, and in line with the respect accorded to Chapter 9 institutions supporting democracy in the Constitution and political life.

There is no ambiguity regarding Parliament’s role in such removals as MPs play a role in their appointment.

But an argument could be made over which committee should be involved. Because the public protector was nominated through an ad hoc committee process, an ad hoc committee should hold the inquiry into removal. That would certainly ease pressure on the justice committee that already has a heavy workload dealing with both justice and correctional services portfolios.

Committees in Parliament by their nature are multi-party, and on special issues such as the removal of a public protector, would also have specific terms of reference and deadlines. Reporting back would require a report to the National Assembly, and a vote.

How Parliament decides to go about establishing the rules remains to be seen, but interdict-proofing its processes as best as possible is definitely one aspect of this political pickle.

The DA has made no bones about its wish to see Mkhwebane removed from office. The ANC has yet to come out clearly, although indications from its factional jockeying are that not everyone is a fan, drawing a distinction between the person and the office of the public protector. In contrast, the EFF has ditched its initial reluctance to now stand side by side with Mkhwebane in court.

The rules-writing and inquiry processes will be lengthy. And political swords will be crossed — repeatedly.

Update Note: Parliament’s justice committee on Tuesday unanimously decided to refer the matter of rules for an inquiry into Public Protector Busisiwe Mkhwebane’s fitness for office to the rules committee. It was one of two options, the other being an inquiry using Rule 167 that had allowed the public enterprises Eskom State Capture inquiry. A letter requesting Speaker Thandi Modise to refer the matter to the rules committee would be send off still on Tuesday, said committee chairperson Bulelani Maganishwe.DM

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