Still ahead: A long and winding road for Busisiwe Mkhwebane impeachment inquiry

In parliamentary practice and politics, there’s a world of difference between “considering” and “noting”. “Considering” means saying either yes or no, or proposing a third way. “Noting” means nothing happens thereafter.

Maybe that seems pedantic, but the use of language in the national legislatures is central to lawmaking – and can be an instrument in politicking.

At Thursday’s programming committee meeting, ANC Chief Whip Pemmy Majodina proposed that the House “note” an independent panel’s recommendation of misconduct and incompetence impeachment proceedings against Public Protector Busisiwe Mkhwebane. The panel’s report, released on Monday, states sufficient information was found to sustain prima facie evidence of misconduct and incompetence.

“I move to accept this report as a process report that needs us to act on it as Parliament … Because our term is towards the end in the next two weeks. I want to suggest the report will be tabled for noting in the House on the 16 of March.”

IFP Chief Whip Narend Singh pointed out that, given the rules, “I don’t see how we can note the report…”. National Freedom Party MP Shaik Emam agreed, as did other opposition MPs later.

Majodina clarified: “I am saying the report must come to the House for noting to be referred to a committee because my fear is that it’s a preliminary report from the panel and therefore starting to debate it without subjecting it to a committee that is going to do inquiry might be dangerous for Parliament. Because we will debate something that is not fully processed.” 

Maybe it was obfuscation. Maybe it was a misreading of the rules. Or maybe it was grasping at political straws as the ANC, amid its factional internal wars, has yet to decide where it stands on Mkhwebane. 

The EFF on Thursday was in no rush to even table the independent panel’s report. Its support for Mkhwebane — who has just over two-and-a-half years left of her seven-year non-renewable term — is on public record. 

The ANC in Parliament seems to have politically miscalculated in thinking opposition parties would try to make political hay and insist there was a case for Mkhwebane to answer — and to embarrass the party that way. 

Instead, all opposition parties agreed that, when on 16 March the report is before the House to consider, as the rules require, any declarations made from the podium would be only on process. Or, as the original complainant DA Chief Whip Natasha Mazzone put it, MPs had “no right” to discuss any merits of the case as that was for the Section 194 inquiry committee. 

Considering the report and recommendation by the independent panel of retired Constitutional Court Judge Bess Nkabinde and advocates Dumisa Ntsebeza and Johan de Waal is the fifth step of about 17 in terms of the “Removal of Officer Bearers in Institutions Supporting Constitutional Democracy”. 

As the ANC’s proposed date of 16 March to deal with this was accepted by Thursday’s programming committee, the governing party effectively has 12 days to make some decision regarding its stance on Mkhwebane. 

If the House on that day decides against the independent panel report and recommendation, then it’s all over. If the House decides there must be a Section 194 inquiry committee, that’ll be the next step. 

Such proceedings are unprecedented in Parliament. As National Assembly Speaker Thandi Modise put it: “It will be a very sad day, though, I must say it upfront, that with the report all you party leaders have in your hands would be putting democracy to shame. We owe it to the country, to the institution (Parliament), to the individual involved to go through a process, in the end, we can all live with. For me, that is very important.” 

Earlier, Modise called for the national legislature not to be clumsy or overhasty, or to drag its feet. “We want to be fair. We want to be punctual.”

The Easter recess, and that the rules do not stipulate the size of the Section 194 inquiry committee, may delay matters. But it is a lengthy process – with the possibility of additional delays arising from, for example, procedure and scheduling.

It’s also taken a while but, on Thursday, the parliamentary Powers and Privileges Committee reached the stage of finding 16 EFF MPs guilty of contempt of Parliament. 

This matter goes back to the disruption of the July 2019 Budget vote speech of Public Enterprises Minister Pravin Gordhan. The sight of EFF MP Sam Matiase crossing the floor to stand before Gordhan, followed by other EFF MPS, shook Parliament and infuriated lawmakers across political divides.

The parliamentary disciplinary proceedings started in late November 2020, resumed in December and this week. The meeting proceeded even though the EFF has turned to the courts – with Parliament opposing – as no interdict has been issued yet. 

Just short of two hours later, and with EFF MP Mbuyiseni Ndlozi’s objection noted, the Powers and Privileges Committee found all EFF MPs guilty as charged.

“All of them, the committee finds them guilty as charged,” said committee chairperson Philly Mapulane. 

It’s not quite the end of the matter. The EFF MPs have an opportunity to make representations. And further deliberations must unfold on possible penalties in terms of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act.

These penalties range from formal warning, reprimand, suspension of privileges such as attending sittings, suspension of salary for up to 30 days, fines equivalent to a month’s salary and “any other penalty” the parliamentarians may be liable for under any other law.

The contempt proceedings against the EFF MPs continue, perhaps without much public scrutiny, but Parliament is keenly aware of the scrutiny it faces over a possible impeachment inquiry against Mkhwebane. DM