Kicking the Public Protector impeachment down the line – at least for now

That the inquiry into the removal of Public Protector Busisiwe Mkhwebane was going to be a political pickle steeped in legal manoeuverings has been clear from get-go.

 And so perhaps it was not surprising the ANC in Parliament decided to fall in with the opposition to support appealing the Western Cape High Court judgment that in an unprecedented move rewrote parliamentary rules, but then to use that appeal as reason to hold off the impeachment inquiry.

It would have been a neat solution invoking legal reasons to dodge political predicaments. 

At Friday’s rules committee, everyone agreed Parliament must appeal the 28 July 2021 Western Cape High Court judgment that effectively put into limbo the Section 194 removal inquiry against Mkhwebane. But unlike the opposition call for the inquiry to proceed, ANC Chief Whip Pemmy Majodina argued that an appeal required suspending the impeachment proceedings.

 “The only thing we can do is to put on hold the functioning of this [Section 194 inquiry] committee until this process of appeal goes through, so we are not seen as undermining that [court)] ruling… That appeal must seek clarity on all fronts.”

It’s unclear where or how this view decision was taken; acting Speaker Lechesa Tsenoli seemed taken off-guard. 

 “Once the appeal is registered, the decision of the court is suspended… The law says so to us. Immediately the appeal is registered, we proceed. Because nobody can stop us,” said Tsenoli. “This is absolutely critical in our understanding of what our next step should be.”

 As Freedom Front Plus chief whip Corné Mulder cautioned against stopping the inquiry pending legal proceedings – “This could be drawn out to the Constitutional Court until after the public protector’s term ends.”  – ANC MP Bulelani Magwanishe moved to support his chief whip Majodina.  “If we are going to appeal, the issue of legal representation is a very weighty issue. If you are appealing that, you can’t proceed with the inquiry.”

 And with that it was decided further discussion would unfold in various parliamentary backrooms. 

 Friday’s rules committee was meant to have the final word in the impeachment inquiry, according to last week’s programming committee.

 Earlier that week, the meeting of the Section 194 inquiry had been postponed because of that Western Cape High Court ruling in late July in an unprecedented move rewrote parliamentary rules.

 That’s after its second meeting following its establishment earlier in July, and the adoption of a draft programme, including public hearings, that would have seen Mkhwebane’s impeachment inquiry finalised in January 2022 for submission to the House.

 Parliament’s rules are not sacrosanct, and have been found wanting; judges have always been careful not to tread across the separation of spheres of state. The national legislature has always been given a set time to fix its rules.

Although Mkhwebane lost her court bid against impeachment on all but two grounds – including a punitive cost order against ex-National Assembly Speaker Thandi Modise – the full Bench provided relief by rewriting the rules.

 By deciding judges could not be involved even in a non-binding initial assessment, the Western Cape High Court effectively voided the independent panel chaired by retired Constitutional Court judge Bess Nkabinde that in late February recommended to the National Assembly that Mkhwebane had a case of incompetence and misconduct to answer.

 Perhaps more importantly, through the court’s decision lawyers may participate in the impeachment proceedings, it has opened the doors to lawyers speaking for ministers, officials and other public office holders in all parliamentary proceedings. 

 That effectively makes a mockery of holding the executive and public office bearers to account. Perhaps the best parliamentary precedent was set in the 2017 Eskom State Capture inquiry by the public enterprises committee – everyone had their lawyers present for advice, but the Eskom board chairpersons, executives and former public enterprises ministers like Lynne Brown and Malusi Gigaba all did their own talking.

 On Friday Parliament’s legal services briefing to lawmakers seemed to indicate the national legislature had strong grounds of appeal.

The National Assembly has a key role in the appointment of Chapter 9 institutions established to support democracy, and carries the constitutional responsibility also for their removal on grounds incapacity, incompetence and misconduct, according to Section 194 of the Constitution.

 It had taken 17 months to get here since DA chief whip Natasha Mazzone laid the complaint in February 2020, after the House adopted the new Section 194 rules in early December 2019. The initial September 2017 complaint from the DA’s then chief whip John Steenhuisen, now party leader, effectively fell through the cracks. 

 In 2020, when Mkhwebane turned to the courts to try to interdict the impeachment pending a review of the rules, Parliament stood firm and continued. In October 2020 the Western Cape High Court dismissed the interdict application, coming down in favour of public interest and parliamentary oversight duty.

 That was the first part of Mkhwebane’s legal case, which continued in June 2021 with the actual challenge against the rules, or part B. This led to the 28 July judgment that now requires the National Assembly to decide how to move forward with a court appeal, and Mkhwebane’s impeachment inquiry.

 Parliament’s inquiry into Mkhwebane’s removal from office was a given. Such impeachment is unprecedented.

It’s been a long-drawn out process, steeped in politics and politicking, and could well continue to be amid legal, procedural and political processes and deflections. Mkhwebane’s non-renewable seven-year term as Public Protector ends in October 2023. DM