While Mkhwebane’s spell in office draws to a close one way or another, search begins for her successor

It’s a bit of a numbers game. Suspended Public Protector Busisiwe Mkhwebane’s constitutional non-renewable seven-year term ends on 14 October. The National Assembly returns from its mid-year constituency recess on 28 August.

That would be the first date MPs could consider a report from the Section 194 committee on Mkhwebane’s fitness for office, a process that started in mid-July 2022 with public hearings.

By 31 August, Parliament’s ad hoc committee to nominate a person for appointment as the next Public Protector must report back to the House on its choice. The President makes the appointment, according to section 193(4) of the Constitution.

It’s not a given what findings the Section 194 impeachment inquiry will come to when the on-off inquiry, mired in legal challenges and legal funding pressures, finalises its report by 28 July. 

It could clear Mkhwebane of the gross misconduct and incompetence counts. But it could also find her guilty. Either way, the Section 194 committee must go to the House, where impeachment must be approved by a two-thirds majority, according to section 194(2)(a) of the Constitution.

Even if impeachment is the committee’s recommendation, and even if the report is before the House on the first possible date of 28 August, it cuts just six weeks from Mkhwebane’s term in office.

It’s a dissatisfactory ending to the unprecedented process of an impeachment inquiry into the fitness for office of a Chapter 9 institution established to support democracy. The inquiry would have run over some 43 weeks.

In a case of the old dying and the new not yet born, it’s imperative to ensure this impeachment inquiry with all its controversial twists and turns does not contaminate the search for the new Public Protector.

On Tuesday, Parliament’s dedicated committee to nominate a new incumbent elected as its chairperson ANC MP Cyril Xaba, who is also the parliamentary defence committee chairperson.

On Thursday, the committee adopted a programme leading to a nomination report that will be presented to the House by 31 August, kicking off the process with an advert calling for nominations set for next week.

Last time round, the committee headed by Makhosi Khoza, then still an ANC MP, embarked on a series of public engagements, calling for public input on nominees and a day of interviewing shortlisted candidates that ended just after 3am.

Read more in Daily Maverick: Analysis: Light questions and tough decisions – the search for a new Public Protector

Mkhwebane, whose stint as an analyst in the State Security Agency (SSA) emerged in those interviews, was a compromise brokered by the EFF in committee deliberations in August 2016. The ANC had favoured Judge Siraj Desai, whom the DA and others opposed.

On Thursday, MPs agreed there should be public comment and input about nominated persons, whose CVs, with redacted personal details such as ID numbers, in line with the Protection of Personal Information Act, are set for publication in mid-July.

The shortlisting process will require a questionnaire and screening by the SSA and the SAPS, with Parliament’s human resources department doing qualification checks before a final shortlist in late July for interviews scheduled for the week of 21 August. Minister in the Presidency Khumbudzo Ntshavheni, who’s responsible for the SSA, will be asked to ensure a dedicated team is allocated for screening nominees, the committee decided.

This nomination process must now unfold. But a new Public Protector could be a reset.

Controversial from the start

Extortion charges