As SONA preparations advance, Public Protector and Parliament in face-off over rules for removal

During Thursday’s briefing on Parliament’s readiness to host the State of the Nation Address (SONA) on 13 February 2020, National Assembly Speaker Thandi Modise confirmed court papers had been served by Public Protector Busisiwe Mkhwebane to halt proceedings to look into her removal from office. 

A little more detail has emerged from the public protector’s court papers, which Daily Maverick has seen. By 17 February 2020 the respondents – Modise, President Cyril Ramaphosa, and all political parties represented in Parliament — must file replying affidavits. 

As must all other Chapter Nine institutions supporting democracy which Mkhwebane has drawn into her court battle over the rule on a Section 194 inquiry, or “Removal of Office Bearers in Institutions Supporting Constitutional Democracy”. It remains to be seen how the auditor-general of South Africa, South African Human Rights Commission (SAHRC), Electoral Commission of South Africa (IEC), the Commission for Gender Equality and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities will respond.

It may well be that the president, political parties and others only file papers to abide by the court’s decision, leaving the legal battle to Modise as presiding officer and political head of the National Assembly, which had in December 2019 adopted the new rules.

Mkhwebane’s legal papers argue that the interdict against Modise – or against people in Parliament who are conflicted, as the court papers put it in a second interdict option – is the first step.

The second step is a judicial review of the rules Parliament adopted to remove heads of Chapter Nine institutions supporting democracy under Section 194 of the Constitution.

Those new rules – effectively a four-stage process involving a motion for removal, an independent panel of experts, an ad hoc committee and a final vote requiring a two-thirds majority in the National Assembly – had been drafted by the multi-party rules committee. They were, in a rare moment of unanimity, adopted by the rules committee at the end of November 2019 and then, without any debate, by the National Assembly in December 2019. 

While parliamentary rules have on at least three occasions since 2012 been found wanting, the courts have not once told Parliament how to fix these – only that the rules must be fixed.

In her court papers, Mkhwebane dismisses Modise’s insistence that the rules were fully above board, arguing:

“A more realistic view is that the rules can only be confidently applied after the courts have scrutinised if they are indeed fit for purpose. Any sensible person or party should welcome with humility the opportunity presented by the present application for the rules to pass or fail the test of judicial scrutiny.

“Disputes such as this one by definition provide the necessary oxygen to breath life in the skeletal framework which is the Constitution – more so in a young democracy.”

The 97-page court document in many ways reflects what Mkhwebane publicly announced during a briefing on new investigative reports in late January, when she described the new parliamentary rules as “biased” and “unconstitutional”.

Her founding affidavit repeatedly describes the rules as “impugned”, and criticises the process by which the rules came about, and the rules themselves.

“It is the very first time ever, in our young democracy that a serious attempt is being made to remove and dethrone the head of a watchdog institution by impeachment,” says Mkhwebane in her court papers. “Section 194 of the Constitution will receive its maiden judicial interpretation and much required scrutiny.”

That it has come to court action is no surprise.

At the late January briefing, Mkhwebane had called for a “temporary suspension” of the process to look into her removal from office pending an “amicable” solution, with a deadline for Modise to respond to this offer set as Thursday 30 January 2020 to avoid court action.

Parliament, as the legislative sphere of state, is bound by its rules, at least until the rules are proven inadequate, unlawful and invalid. The public protector’s call for a suspension of the rules and amicable solution highlights her odd take on parliamentary rules and parliamentary processes.

As lawyers put their heads together over Mkhwebane’s court interdict bid, the governing ANC has yet to take a decision regarding Mkhwebane.

After Thursday’s ANC parliamentary caucus session, the party’s Deputy Secretary-General, Jessie Duarte, confirmed the matter of the public protector had been raised in caucus. But as there has been no decision yet, it’s a work in progress.

“There is a process in place. The ANC has not discussed where we stand, so we can’t give you an answer either way,” said Duarte. Without mentioning names of those who’ve come out in support of the public protector, Duarte said they have done so in their personal capacity.

Among those who are on public record supporting Mkhwebane are ANC MPs Supra Mahumapelo, Mosebenzi Zwane and Bongani Bongo.

It’s complicated, and given the factional divisions in the governing ANC, by no means a settled issue. Watch this space as factional jockeying heats up in the ANC ahead of its June 2020 General National Council (NGC), or mid-term assessment halfway through the five-year life cycle.

The outstanding decision on the public protector and the court action are among several issues bubbling away as the national legislature hosts SONA 2020.

If African Transformation Movement (ATM) President Vuyolwethu Zungula has his way, the National Assembly would soon debate his party’s motion of no confidence in Ramaphosa for, among other,  “misleading South Africa there would be no load shedding until 13 January”, failure to dismiss Public Enterprises Minister Pravin Gordhan and “loss of confidence in the South African government by local and international investors due to indecisiveness and poor to non-existent leadership…”

It remains to be seen whether this motion will be scheduled. Modise is considering the request to schedule it.

Meanwhile, Parliament is focusing on SONA 2020 come hell or high water. Or high winds as is the case in Cape Town at this time of the year.

The pomp and ceremony have been pared down in keeping with the state-wide injunction to cut costs, but there will still be the imbongi, a 21-gun salute and Parliament’s choir to entertain some 2,021 invited guests.

Hosted under the theme, “Following up on our commitments: making your future work better”, it’s aimed to underscore the national legislature’s character as a people’s Parliament.

In attendance will be the first National Assembly speaker in democratic South Africa, Frene Ginwala, and her successor Baleka Mbete, whom Parliament now refers to as “Deputy President” in reference to her stint in that executive office from September 2008 to May 2009.

Also confirmed are former presidents Thabo Mkebi, Kgalema Motlanthe and FW de Klerk.

Absent is former president Jacob Zuma. But given the medical certificate handed to the Durban High Court to explain his absence from the corruption trial, it would have been a bit odd had Zuma suddenly recovered well enough to attend SONA 2020. DM