15 March 2021

Public Protector Matter in Parliament: What You Need To Know

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The National Assembly is expected to vote tomorrow, Tuesday 16 March 2021, on whether or not to proceed with the process of impeaching Public Protector Busisiwe Mkhwebane.

 

Background

The National Assembly endorsed Adv Mkhwebane as the fourth Public Protector with an overwhelming majority in September 2016. The House vote tally resulting in her appointment was as follows: 266 Ayes, 79 Noes and 1 abstention.

 

The Democratic Alliance first submitted a complaint against the Public Protector in September 2017, renewed its request for removal proceedings in the new Parliament after the May 2019 elections – and also pointed out the lack of rules. In early December 2019, the House unanimously adopted new parliamentary rules on the Removal of Office Bearers in Institutions Supporting Constitutional Democracy.

 

On 21 February 2020, the DA Chief Whip, Ms Natasha Mazzone, then submitted a motion to the Speaker of the National Assembly, Ms Thandi Modise, in terms of Rule 129R of the National Assembly rules for the initiation of proceedings, more particularly an inquiry to determine whether the Public Protector should be removed from office on the grounds of misconduct and/or incompetence.

 

Following the declaration by the Speaker that the motion was in order, an independent panel was appointed to conduct and finalise a preliminary assessment to determine whether there is prima facie evidence showing that the Public Protector has indeed committed misconduct, or is incompetent and to make recommendations in a report to the Speaker.

 

To be clear, the Panel was not tasked to conduct a section 194 inquiry for the removal from office of Adv Mkhwebane. The task, if it is so resolved, is for a parliamentary committee.

 

After gathering evidence and listening to inputs – including some from Adv Mkhwebane herself – the panel comprising Justice Bess Nkabinde, advocate Dumisa Ntsebeza SC and advocate Johan De Waal SC said it had found substantial prima facie evidence of incompetence and misconduct – and Parliament could go ahead to form a committee to impeach her.

 

The panel report highlighted evidence demonstrating Adv Mkhwebane’s overreach and exceeding the bounds of her powers in terms of the Constitution and the Public Protector Act, repeated errors of the same kind, such as incorrect interpretation of the law, and other patent legal errors.

 

Process issues and what to expect tomorrow

Guided by the report of the independent panel, the National Assembly will decide during the Tuesday sitting whether it agrees with the panel, and whether an inquiry by a parliamentary committee should be held or not.

 

Secretary to the National Assembly Masibulele Xaso advised MPs recently that ideally, on the day the report is placed before the National Assembly for consideration, MPs should only confine their inputs to process matters and not the merits of whether Adv Mkhwebane is capable of being a Public Protector. This would be done during the inquiry, if an inquiry goes ahead.

 

The voting will proceed with the normal rules for hybrid sittings. This means an MP who disagrees with their party line, will have to draw the presiding officer’s attention to their dissenting vote.

 

A simple majority (50% + 1) is required to go ahead with the inquiry.

 

Some Members, both from the majority and opposition parties, have already pronounced that they will not vote with the DA for the possible impeachment of the Public Protector.

 

Speaker Modise, speaking during a recent National Assembly Programming Committee, said: “It would be a very sad day though, I must say it upfront, that with the report that all of you party leaders have in our hands, we say we don't want a committee stage because then we would really be putting democracy in this country to shame. I think we owe it to the country, to the institution, to the individuals involved, to go through a process which in the end all of us can live with. For me that is very important.”

 

Way forward after the Tuesday sitting

According to the National Assembly rules on the removal of heads of Chapter 9 institutions, adopted in early December 2019:

  • In the event the assembly resolves that a section 194 inquiry be proceeded with, the matter must be referred to a committee for a formal inquiry.
  • The speaker must inform the president of any action or decision emanating from the recommendations.
  • Once the committee has been established, it must proceed to conduct an inquiry and establish the veracity of the charges and report back to the National Assembly.
  • The committee must ensure that the inquiry is conducted in a reasonable and procedurally fair manner, within a reasonable time frame.
  • The committee must afford the holder of a public office the right to be heard in his or her own defence and to be assisted by a legal practitioner or other expert of his or her choice, provided that the legal practitioner or other expert may not participate in the committee.
  • For the purposes of performing its functions, the committee has all the powers applicable to parliamentary committees as provided for in the Constitution, applicable law and the rules.
  • Once the committee has concluded its work, it has to draft a report with findings and recommendations, including the reasons for such findings and recommendations for consideration and debate by the Assembly, with due urgency, given the programme of the assembly.
  • If the report recommends that the holder of a public office be removed from office, the question has to be put to the House for a vote and if the required majority of the Members support the question, the assembly must convey the decision to the president. The Public Protector can be removed by at least two-thirds of the Members of the National Assembly.
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