The current debate around the fate of the Public Protector and the vote on referring the complaints against her to a committee of the National Assembly brings into sharp focus the role of chapter 9 institutions in the constitutional democracy contemplated in our supreme law, the Constitution of the Republic of South Africa.

Traditionally there are three spheres of government. First, a legislature that makes laws and exercises oversight over the executive branch of government. The executive runs the public administration at national, provincial and municipal levels in SA. The president is the head of the executive and the head of state in our dispensation. Thirdly, the judiciary adjudicates disputes, whether between state and citizen or citizen and citizen, in an impartial and independent manner, answerable only to the law and the Constitution.

When the transition from parliamentary sovereignty to constitutional democracy was effected in SA in 1994, the founders of the new order wisely recognised that the people of South Africa were used to being passive subjects of an authoritarian regime and that a great deal of work would be necessary to convert them into active citizens who participate fully in holding government in all its manifestations to account. This task is still a work in progress more than a quarter of a century after constitutionalism under the rule of law was embraced by the supportive votes of the majority of South Africans.

In order to strengthen constitutional democracy in SA, six state institutions were established in chapter 9 of the Constitution. They are:

• The Public Protector;
• The SA Human Rights Commission;
• The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities;
• The Commission for Gender Equality;
• The Auditor-General; and
• The Electoral Commission.

All of these entities are enjoined to be independent and impartial, they must be protected and assisted by other organs of state with dignity and effectiveness ensured. No one may interfere with the functioning of these entities. They account to the National Assembly and must report to it at least once a year. Their overall task is to keep SA on the path of constitutionalism. Ensuring free and fair elections, taking appropriate remedial action when maladministration is proved, auditing the finances of the state, promoting respect for human rights – all these tasks aim at embedding constitutionalism.

Because the public protector has the power to investigate maladministration and to take binding remedial action when impropriety and prejudice are found during investigations, the role of the protector in an era of State Capture has become pivotal in the constitutional development of SA.

The State Capture Commission arose from the previous Public Protector, Prof Thuli Madonsela’s recommended remedial action in her October 2016 State of Capture report.

Former President Jacob Zuma indubitably rues the day on which he appointed Thuli Madonsela as public protector. When given the opportunity to appoint her successor, he chose Busisiwe Mkhwebane, a little-known public servant, with a view to avoiding the same mistake twice. He did so over the objections of the official Opposition, objections that appear to have been well-founded.

All Public Protectors are appointed for a non-renewable term of seven years. Mkhwebane was appointed in October 2016.

The SA Human Rights Commission has a constitutional mandate to promote and protect human rights. The state is constitutionally obliged to respect, protect, promote and fulfil the various human rights guaranteed to all in the Bill of Rights which is chapter 2 of the Constitution. Investigation and reporting on performance in this regard is a part of the work of the commission.

Ensuring free and fair elections is the core focus of the Electoral Commission, while the Auditor-General audits and reports on the accounts, financial statements and financial management of the state at national, provincial and local levels. The names of the other chapter 9 institutions reveal their areas of competence and focus in niche areas of human rights.

It can be argued that collectively the chapter 9 institutions are the “integrity sphere” of government and that together they constitute a fourth part of government which is not easily accommodated within the three traditional spheres of government, the legislatures, executive and judicial spheres of government.

If one treats the leadership of the chapter 9s with the same constitutionally inspired deference that is accorded to judges, it behoves that leadership to behave accordingly. When there is misconduct, incapacity or incompetence in evidence, then special provisions set out in section 194 of the Constitution come into play. The Auditor-General and Public Protector can only be removed by a vote of two-thirds of the members of the National Assembly while commissioners may suffer the same fate if a simple majority of parliamentarians so votes. The voting is preceded by a finding to that effect by a committee of the National Assembly and the adoption of a resolution by the assembly itself. The president must so remove upon adoption of the assembly resolution. 

These convoluted procedures are designed to protect the dignity and effectiveness of the incumbents of the high offices of the chapter 9 institutions. So far no one has fallen foul of the section 194 procedures currently pending against Mkhwebane.

The Public Protector is meant to act without fear, favour or prejudice, independent of political influences and interference. If Mbalula is correct and she has not done so, she should be removed from office.

Because good governance that is open, accountable and responsive is central to the constitutional project, it can be argued that the chapter 9s are a fourth sphere of government that is designed to embed constitutionalism in the hearts and minds of our people and in the workings of the other branches of government.

It has been cogently argued by Professor Omphemetse Sibanda in the columns of Daily Maverick that the work on the removal from office of the leaders of the chapter 9s is in the nature of quasi-judicial activity. The members who vote are deciding the fate of an individual after a process that involves an adverse finding by a committee of the National Assembly. That finding has to be reached in a manner that withstands the scrutiny of the rule of law. At its lowest, a rational, objective and fair finding is required, failing which the outcome is vulnerable to legal attacks.

For this reason, the National Assembly has devised a 17-step procedure that is intended to ensure that the rule of law is upheld in removal proceedings under section 194. The net effect of the provisions set out in the procedure is that the outcome of the process is above criticism of a well-founded kind. The design of the process renders it unmistakably of a quasi-judicial nature.

One of the innovations so devised is the preliminary report of a panel of experts who are given a mandate to scrutinise the complaints against the individuals concerned with a view to establishing whether or not a prima facie case can be made out against them. This report is then tabled in Parliament to inform the vote of the members of the National Assembly on whether or not to appoint a committee of the National Assembly to make findings on the complaint as contemplated by section 194(1)(b) of the Constitution.

It is suggested that when they vote on whether or not to refer the matter to the committee to make or not make the necessary finding, the members of the National Assembly are obliged to set aside their political baggage and vote in the same manner as judges make decisions. Impartiality, independence and objectivity are brought to bear with a view to acting rationally in so voting. If the decision to be made is to be regarded as a purely political one, then the elaborate efforts and procedures would be superfluous. The panel of experts would be wasting their time enlightening Parliament on their views of the evidence available. The political instructions on how to vote would prevail.

If it is correct that a quasi-judicial process is currently underway in respect of the Public Protector, consequences flow from the casting of votes in a nakedly political fashion. The secretary-general of the ANC should be asked by those he commands to vote to protect Mkhwebane to indemnify them against claims that could ensue as a result of their not exercising their vote in a manner that passes quasi-judicial constitutional muster.

Better still, the instruction from Luthuli House should be seen as unwarranted interference in the oversight functions of the National Assembly and should be ignored by those who recognise that they are first and foremost accountable to the people of SA and not to the party bosses on whose list their names appear.

Minister Fikile Mbalula has weighed in on the topic. He says the Public Protector is a “hired gun”. She regards this comment as crimen injuria and has apparently laid a charge against the minister. Mbalula is not budging. He is quoted in the press as saying: “…having noted the threat by the Public Protector, Ms Busisiwe Mkhwebane, to take me to court over my references to her, I wish to reiterate that I stand by my views that she conducted herself as a hired gun, more interested in pursuing partisan political agendas rather than uphold the stature of the Office of the Public Protector, with the responsibility to place the interest of the citizens first. I therefore remain ready to meet her in court to defend my statement.”

If the ANC members of the National Assembly agree with the minister’s views they are honour bound to ignore the instruction from the secretary-general of the ANC and vote in favour of pursuing the process that requires a finding by a committee of the National Assembly to remove Mkhwebane from office.

The Public Protector is meant to act without fear, favour or prejudice, independent of political influences and interference. If Mbalula is correct and she has not done so, she should be removed from office.

The vote is on 16 March; it will be a strong indicator of the commitment of ANC parliamentarians to the rule of law and the sanctity of their oversight role if they accountably and rationally vote in favour of the motion. If any do not, blind factionalism will be on display and consequences in litigation impugning irrationally cast votes will surely follow. The vote is a test of the strength of the various factions within the ANC. Ace Magashule has chosen a mine-infested battleground on the issue of how to vote as the law and the Constitution both point in the opposite direction to that he wishes the ANC caucus to take.

Think of the whole debacle as the Zuma era chickens coming home to roost. Everyone will know on 16 March whether the chickens are roasted or feted by the ANC MPs of 2021. DM