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Public Protector impeachment should not be used by MPs...

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Opinionista

Public Protector impeachment should not be used by MPs as a political battering ram

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

It is hoped that in the Busisiwe Mkhwebane impeachment, MPs act honourably by being objective, unbiased and impartial. Using the impeachment process to settle political scores, mount vitriolic political attacks or defend scandals will be an assault on the Constitution, the Office of the Public Protector and democracy in general.

In what can be defined as an event of historic import, the resumption of impeachment proceedings against suspended Public Protector Busisiwe Mkhwebane will surely not be without drama.

One particular concern is whether our MPs will be mindful of the judicial importance of this process instead of it being political, and put the country first. Do our MPs have it in them to pay allegiance to the Constitution and not their respective parties by ensuring that their section 194(2) and 194(3)(b) vote is non-partisan, impartial and rational?

So far, signs are that there will be blood on the National Assembly floor if the ATM’s rebuke of the acting Public Protector Kholeka Gcaleka for withdrawing support for suspended Public Protector Busisiwe Mkhwebane’s court battles to halt Parliament’s impeachment proceedings is anything to consider. In particular, signs are that the impeachment vote will be as political as it can get. Partisanship is to be expected because the impeachment of the Public Protector is such a high-profile event.

This historic South African impeachment of the head of a Chapter 9 institution will not be the first to be subject to partisanship.

Partisanship is a continuing problem in impeachments in the United States, a country which years after having introduced the impeachment process, is still to perfect how to ensure it is more judicial than political.

I am reminded of the political machinations and partisanship during the 1803 impeachment of John Pickering, a federal judge in the district of New Hampshire facing federal impeachment, who was referred to in an article on Daily Runner Online as the bad boy of the judicial branch. Pickering was known to have shown signs of mental deterioration on the bench and had a reputation for drunkenness that left him unable to perform his judicial duties. The challenge, as in South Africa with political debates, was that his impeachment was directly and indirectly linked to President Thomas Jefferson and the Jeffersonian Republicans who stood to gain from a federal judicial power shift.

Though finally convicted in 1804, Pickering’s impeachment was politically charged and became a political hot potato tossed around by parties seeking control of Congress, despite prima facie evidence for charges of drunkenness and unlawful rulings. A narrative in remembrance of Judge Pickering’s impeachment is that “as part of his effort to remove Federalist judges from office, President Thomas Jefferson suggested that Pickering’s embarrassing conduct and alleged unlawful rulings amounted to an impeachable offense”.

Rewinding to the Mkhwebane impeachment, it is hoped that the MPs act honourably by being objective, unbiased and impartial. Using the impeachment process to settle political scores, mount vitriolic political attacks and swipes as we have seen in the past, or to defend scandals, will be an assault on the Constitution, the Office of the Public Protector and democracy in general.

A recent opinion in Daily Maverick has suggested that “there will be those who suggest that the President was motivated by his personal difficulties occasioned by the robbery at his farm and the consequent charges brought against him by Arthur Fraser”. I will thus be naïve to expect the purity of the process. However, it is every citizen’s legitimate expectation of our MPs not only to act honourably, but to also not weaponise the process the country has been eagerly awaiting to see finalised for the sake of stability in the office of an important Chapter 9 institution.

Clause 4.1 of the Constitution of the Republic of South Africa, 1996 — Schedule 2: Oaths and Solemn Affirmations makes the oath of office important and must be one of the key considerations of whether MPs are faithful to the Constitution when they deliberate and vote on Mkhwebane’s impeachment.

For instance, an incoming MP will say: “I, A.B., swear/solemnly affirm that I will be faithful to the Republic of South Africa and will obey, respect and uphold the Constitution and all other laws of the Republic, and I solemnly promise to perform my functions as a member of the National Assembly to the best of my ability.”

Though not part of the removal provisions of section 194 of the Constitution, I am of the view that MPs must go into the impeachment process seeking to promote and protect the oath of office they took.

Our MPs must do this by being impartial and guided in their decisions by only the issues and facts before them.

It remains to be seen if our MPs will protect the integrity of the impeachment process for posterity, or they will send a message that the impeachment of heads of Chapter 9 institutions must be placed somewhere and be clothed in judicial trappings until the end of the process. DM

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  • There is really very little for parliament to debate. The courts have found on multiple occasions that she is incompetent, dishonest and a liar. It would take a body such as the Legal Services Council, which found that Mpofu was not rude, to ignore reality and find her fit and proper.

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