In a recent opinion on the removal of advocate Busisiwe Mkhwebane from the Public Protector’s office due to claims about her fitness to hold office, I wrote that “in the end, the rule of law will guide the process to investigate her fitness to hold office and how her final removal, if so determined, must be conducted. Again, we are talking about a process whose continuation to a detailed investigation or final end will be left to the elected politicians as decision-makers, some of whom are allergic to accountability and the rule of law. There is a likelihood they will be intimidated into voting a particular way – probably against the motion to remove her from office”.

My reference to the rule of law as a way of supporting the view that impeachment is constitutional and judicial in nature may have been at the risk of appearing naïve. Of course, we cannot be naïve in the face of unfolding events around the removal of the Public Protector. Most National Assembly members, particularly from the ANC, may have no incentive to support Mkhwebane’s removal. 

Judging by media reports, Mkhwebane’s support is gaining traction. Perhaps the most significant bearing on the success of the removal proceedings comes from the ANC structures. It was reported by the Sunday Times over the past weekend that ANC secretary-general Ace Magashule said “principled” ANC MPs will vote against any motion or oppose any process to impeach Mkhwebane, which is due to commence next week.

The ANC Women’s League (ANCWL) has also expressed its position against the DA-initiated process to impeach and remove Mkhwebane: “White supremacists and their ilk are unkind to anyone who threatens their privilege. As an integral part of the African National Congress, the ANCWL will marshal all its members deployed in the National Assembly and unite the ANC caucus against this motion from DA. No army in the world allows soldiers to be commanded by the enemy general, therefore we don’t expect any member of the ANC to get marching orders from DA branches regarding this motion. The DA’s motion against advocate Mkhwebane will be defeated,” read a statement by the ANCWL.

Impeachment proceedings against Mkhwebane will predictably play out along partisan lines, and there are clear indications that the ANC and the EFF will lead the defence of Mkhwebane in the National Assembly. The likelihood of success in removing Mkhwebane is slim because the decision is ultimately political.

It’s high noon for Busisiwe Mkhwebane, but don’t be surprised if she survives

It will take only 50 ANC members in the assembly to derail the Mkhwebane removal vote. Consider that for example the 2017 impeachment of Donald Trump ultimately failed because this party, the Republicans, controlled both the House and Senate. That impeachment is a political question was confirmed in 1993 by the Supreme Court in Nixon v the United States 113 S. Ct. 732, 740, with its ruling that a challenge to the use of a special committee by Senate to do fact-finding for an impeachment trial raises a political question.

As legal and political commentators grace our television screens and other broadcast media, one thing is never going to change no matter how eloquent and convincing the commentary is: impeachment of Mkhwebane will evolve into a political process, not a judicial or constitutional one.

As already indicated by Magashule and the ANCWL, the deployees in the National Assembly will toe the party line. Mkhwebane’s removal or not will have nothing to do with the Constitution of the Republic of South Africa, the law or legal findings.

There is nothing wrong with this political process as it is rooted in the Constitution itself. The Constitution through section 194(2)(a) vests the final decision-making in the impeachment process and removal of the Public Protector with politicians, stating that “a resolution of the National Assembly concerning the removal from office of… the Public Protector or the auditor-general must be adopted with a supporting vote of at least two-thirds of the members of the Assembly. The president, who is also the political head of both the ANC and the country, is in terms of section 194(3) of the Constitution bestowed with the power to ‘suspend a person from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person’.”

Unfortunately, the Constitution makes no provision for the review of the National Assembly decision on removal proceedings. This may have been to promote and protect the principle of separation of powers.

The president is not obliged to suspend Mkhwebane during the life of the impeachment proceedings in the Assembly – I doubt if he will dare take such a risky decision when clearly the ANC strictures are dead set at thwarting the impeachment. President Cyril Ramaphosa is thus put in an unenviable position of protecting party interests and protecting the Constitution of the Republic or a constitutionally mandated process of impeachment of a chapter 9 institution’s head.

But he cannot put away his involvement forever because section 194(3)(b) will oblige Ramaphosa to remove Mkhwebane upon adoption by the assembly of the resolution calling for her removal. Otherwise, failure to enforce section 194(3(b) resolution by the assembly may expose the president himself to impeachment for failing to honour the provisions of the Constitution, or failing his oath to uphold our Constitution and thus threatening the shaky foundation of our democracy.

Is it not the right time to reconsider all impeachment provisions in the Constitution and to blunt the political influence over proceedings designed to implement such provisions? Understandably, the framers of our Constitution were alive to the undesirable consequences of removing a sitting and democratically elected president through the courts, instead of the National Assembly. The National Assembly is the vanguard of the will of the people – though ours is yet to prove this understanding to be true. Our National Assembly has been erratic and derelict in its duty to protect the Constitution and promote the will of the people.

The understanding of the framers with regard to the removal of presidents noted, perhaps vesting the removal of heads of chapter 9 institutions in the Assembly has now outlived its time. Rather than leaving impeachment of the public protector and other heads of chapter 9 institutions to sometimes heavily compromised politicians and partisan members of the Assembly, some body must be formed to be the final arbiter of the removal or not of the chapter 9 heads. For instance, we can have a Chapter 9 Institutions Tribunal or Chapter 9 Services Tribunal as we have the Judicial Service Tribunal for judges.

Alternatively, we can have the Chapter 9 Services Commission fashioned along the lines of the Judicial Service Commission. Whatever institution is created, the ultimate goal must be to de-politicise the impeachment of heads of chapter 9 institutions. Otherwise, the whole process, starting from the initial investigation by a panel appointed by National Assembly Speaker Thandi Modise is just a waste of resources that could have been used to pay the lawyers of the Zondo Commission which so far remains the leading credible institution to expose corrupt practices. By the way, how much were the panellists paid to come up with their report that there is prima facie evidence of incompetence against Mkhwebane?

“From Ace to Zuma, March is a crunch month for Ramaphosa”, read the title of an analysis by Ferial Haffajee of Daily Maverick. In fact, March is the crunch time for our constitutional democracy. Ramaphosa, the ANC and the country have to deal with the “fallout from the Constitutional Court hearing on the contempt of court case brought by the Zondo Commission of Inquiry into State Capture”.  

From Ace to Zuma, March is a crunch month for Ramaphosa

The historic impeachment of Mkhwebane will present manifold fallouts. The National Assembly process to remove Mkhwebane will have a fallout of major ramifications not only for the ANC – with some of the view that her ousting may split the ANC – but also for the Constitution and the justice system in general.

Unfortunately, the Constitution makes no provision for the review of the National Assembly decision on removal proceedings. This may have been to promote and protect the principle of separation of powers.

“Within a constitutional design that transforms the Senate into a quasi-judicial body, political nullification by a court of impeachment – whether overt or covert – can do violence to the rule of law, presidential responsibility, the institutional integrity of the Senate, and the separation of power,” argues Richard J Broughton in an article aptly titled “Conviction, Nullification, and the Limits of Impeachment as Politics”.

Our Constitution has transformed the National Assembly into a quasi-judicial body when it comes to impeachment matters, and the need to avoid judicial overreach militates against easy interference with parliamentary decisions – even if accountability is denied by partisan voting. Until the chapter 9 institution governance framework is changed, the public protector remains accountable to the National Assembly.

And it would seem that the Assembly is destined to keep Mkhwebane in her position until the end of her term. DM