No litigant could envy the Public Protector’s record before our courts. Her latest defeat, before the Constitutional Court, is a dismissal, with costs, of her audacious application to have the court reconsider its judgment in the CR17 campaign donations matter.
The majority judgment in that case heavily criticised Advocate Busisiwe Mkhwebane for her quality of reasoning, the unsubstantiated findings levelled against President Ramaphosa, that her investigation was carried out without “an open and enquiring mind” and that she “did what no law had authorised her to do”.
Most damning was the finding that among her “series of weighty errors” were “some of which defy any characterisation of an innocent mistake”.
The court’s recent outright dismissal of her bid to have it rescind these findings did not respond to the president’s request that the judgment be brought to the attention of the National Prosecuting Authority so that it might investigate the Public Protector’s dishonest conduct. However, the impeachment process of the Public Protector, now back on track, may yet offer up some form of accounting.
The current impeachment process was initiated by the Democratic Alliance on 21 February 2020, after several earlier attempts had failed. After receiving the current motion, the Speaker, acting in terms of the Rules, appointed an independent panel to investigate and report on whether a case of misconduct, incapacity or incompetence exists against the Public Protector. The panel, chaired by Judge Bess Nkabinde, reported in the affirmative on 24 February 2021.
The report was presented and approved by the National Assembly and led to the establishment of the Section 194 committee. This committee, which comprises 36 members of the National Assembly, will conduct the formal impeachment inquiry and recommend whether or not the Public Protector must be removed from office.
That process was suspended when the Public Protector approached the high court to challenge the constitutionality of the Rules. Her challenge was premised on 22 separate grounds, of which two were successful: the desirability of appointing a judge to the independent panel and her right to legal representation during the formal inquiry.
Fast forward to February 2022 and the Constitutional Court has now offered final clarity as to the constitutionality of the Rules. It ruled, contra the high court, that it is permissible and desirable to appoint a judge to the independent panel because the judge’s impartiality, independence and lack of bias enhance the advisory role played by the panel.
However, it declared the limitation on the right to legal representation during the formal enquiry unconstitutional. The court reasoned that reasonableness and procedural fairness requires that individuals who appear before the committee must be afforded the right to be represented during the inquiry.
The court’s judgment has paved the way for the impeachment process to resume, with the Section 194 committee announcing its intention to do so. This is despite the Public Protector’s announcement that she will — yet again — approach the Constitutional Court in a Hail Mary attempt to ask the court to — yet again — reconsider its judgment.
The formal impeachment enquiry is set to begin on 4 May 2022. During the enquiry, the committee and the Public Protector will be allowed to call, question and cross-examine witnesses. The Public Protector will also appear before the committee to answer questions put to her, with her legal representative by her side. The public is also allowed a role in the process, although how such participation will be facilitated has not yet been determined.
The committee is expected to conclude its work by 22 September 2022. It will present a report to the National Assembly recommending whether or not the Public Protector must be removed from office. If this recommendation is made, a two-thirds majority vote in the National Assembly is required to support her removal. If the two-thirds majority vote in favour of the removal, the President must affect it.
This impeachment is the first of its kind and the clarification of the Rules is a significant development in our constitutional architecture of accountability.
How many rescission applications the Public Protector will threaten along the way though is anyone’s guess. DM
Jos Venter is Legal Researcher at the Helen Suzman Foundation.