After suffering humiliating defeats and rebukes in a gamut of court cases (read, for example, here and here) and the unfavourable report of the independent panel of experts — retired Constitutional Court Judge Bess Nkabinde and senior advocates Dumisa Ntsebeza and Johan de Waal regarding her fitness to hold office – Public Protector Busisiwe Mkhwebane’s fate now lies in the hands of a 26-member panel.

Unfortunately for her, only 11 of the 26-member committee may cast a vote on her fate. “The committee’s 26 members come from each of the 14 political parties represented in the National Assembly. Eleven will be voting members of the committee and another 15 will be non-voting members,” according to parliamentary spokesperson Moloto Mothapo.

The case may already be lost if numbers and support from the 11 members is anything to consider. It is suggested that “the beleaguered Mkhwebane can bank on the support of EFF leader Julius Malema, as a voting member, and EFF MP Omphile Maotwe and African Transformation Movement’s (ATM) Thandiswa Marawu as non-voting members”.

The fact that the committee does not include any of the ANC MPs associated with so-called Radical Economic Transformation (RET) may steer the debate away from the fairness of the process to cries of being a politically motivated lynching of the Public Protector.

Of the 11 voting members, six are from the ANC, whose vote alone in favour of removal means one step further towards putting a final nail in Mkhwebane’s coffin. This is not a far-fetched possibility, given the fact that the ANC held a special caucus ahead of the first vote on 16 March 2021 to determine the establishment of the committee after adopting the report of the independent panel which recommended that such a committee be established, and the outcome of the caucus was that ANC members were instructed to toe the party line (read here, here and here).

Lately, the ANC seems to have closed ranks with regard to the impeachment of Mkhwebane — a bitter pill for me to swallow after previously writing in Daily Maverick that “most National Assembly members, particularly from the ANC, may have no incentive to support Mkhwebane’s removal”. At the time my opinion was based on reports that Mkhwebane’s support was gaining traction, particularly that ANC Secretary-General Ace Magashule said “principled” ANC MPs would vote against any motion or oppose any process to impeach Mkhwebane, which consequently took place on 16 March 2021.

One should expect that there will be those who will advance a narrative that Mkhwebane is already disadvantaged by the “evil influence of the party caucus” of practical politics in the National Assembly. In their article titled “Political party caucuses and democracy: Contradictio in terminis?” published in the 2017 Southern Journal for Contemporary History, Clive Napier and Pieter Labuschagne contended that “the closer the caucus membership is to the political leadership and party policy, the less likely caucus decisions will diverge from voter interests”. [p.223]

On the other hand, the Ramaphosa presidency has with the Mkhwebane issue, among others, become the most tested presidency since the dawn of democracy. For instance, it remains to be seen what President Cyril Ramaphosa will do pursuant to section 194(3) of the Constitution after the committee commences its work. Will he suspend Mkhwebane? Or put her on indefinite leave? In terms of section 194(3)(a) of the Constitution, he is 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”.

Things can thus swing back in a direction favourable to or in favour of Mkhwebane should the ANC vote against adopting and implementing the committee’s outcome of removing her. We may see, for instance, EFF and ATM members in Parliament and some ANC members mounting a pushback against her removal despite the outcome of the committee.

The removal process is fundamentally a political process rooted in the Constitution. Perhaps, then, our legislators must consider adopting laws and procedures for initiating and determining the removal from office of heads of chapter 9 institutions. There is a need to curb political influence and misuse of executive powers bestowed on members of Parliament in the removal of heads of chapter 9 institutions. The make-up of the voting members of the committee may tarnish and cast doubts over the fairness and legitimacy of the whole process.

Doubts regarding the legitimacy of the process and outcome from start to finish must be avoided, otherwise the partisan divide in public opinion will continue to haunt the process. The manner in which the eligibility of the voting members is determined – even if allowed by the existing parliamentary rules – may be a corruptive force, which gives voice to arguments of exacerbation of power inequalities in the National Assembly in favour of one ANC faction and openly drawing daggers against Mkhwebane. Somehow the legislators must get to a point of having in place a system that will militate against corrosive political influence, and reinforce accountability and the rule of law.

I have previously argued that 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, a 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, just as we have the Judicial Service Tribunal for judges.

All may not be lost for Mkhwebane. The decision of the committee will still have to be adopted by a resolution of the National Assembly with a supporting vote of at least two-thirds of the members as required by section 194(3)(b) of the Constitution for the president to remove her.

Things can thus swing back in a direction favourable to or in favour of Mkhwebane should the ANC vote against adopting and implementing the committee’s outcome of removing her. We may see, for instance, EFF and ATM members in Parliament and some ANC members mounting a pushback against her removal despite the outcome of the committee.

In essence, there are ample opportunities for a committee outcome against Mkhwebane to be nullified. The narrative that Mkhwebane is being victimised for pursuing investigations against people like Pravin Gordhan and Cyril Ramaphosa is still alive.

All said and done, the ultimate question is whether the ANC will support removal or not. It remains a matter of the roll of the dice and the vote of clearly partisan politicians who have no experience or precedence on how to conduct impeachment proceedings. Mkhwebane may survive impeachment should MPs’ partisanship in her favour, led by the EFF, ATM and a portion of the ANC, be overwhelming — or she can fall from grace should extreme partisanship against her led by the majority of the ANC, the DA and other parties not sharing the stance of the EFF and the ATM prevail.

In an ordinary judicial impeachment, we would be asking a different question – whether or not the facts and evidence presented justify the removal of Mkhwebane? DM