The rules for the removal of a Chapter 9 head from office were not created for the Public Protector and therefore the rules do not apply retrospectively, “unless [they were] specifically created for Busisiwe Mkhwebane”.
This is according to outspoken ANC MP Mervyn Dirks as Parliament is this week expected to discuss the process to set up an inquiry into Mkhwebane’s fitness to hold office.
A recent report by a three-member panel of experts found prima facie evidence supporting the investigation and, in terms of the rules, National Assembly had to either reject or endorse the panel’s findings.
The panel report also dismissed the retrospective argument that the rules guiding the inquiry were only adopted after the DA had filed its complaint against Mkhwebane. The panel said “there could be little doubt that the new National Assembly rules were meant to apply to conduct which preceded their adoption”.
Dirks, who is among the group in the governing party’s caucus that was objecting to the parliamentary process against Mkhwebane, disagreed with the panel’s views.
In a letter on Sunday he also lashed out at ANC chief whip Pemmy Majodina over “inaccuracies” in a media statement released on Saturday, in which Majodina said the party’s caucus had supported the process to hold an inquiry into Mkhwebane.
Dirks said that “the caucus did not agree that the process to impeach the Public Protector should go ahead”. Instead, he said, there were two views expressed in the caucus.
“I therefore find it unfair that you released a statement based on one view that was expressed in caucus.”
He said there were “no extensive discussions in the caucus due to time constraints and many comrades who raised their hands did not get an opportunity, therefore it is not true that the matter was extensively discussed. In fact, towards the end, chaos erupted over the matter and the caucus chair brought the matter abruptly to an end.”
He also said the media statement failed to mention the caucus agreement that Majodina should meet with the ANC top six on Monday [March 15] “to get a mandate from the ANC”.
“Comrade, as a loyal member of the ANC and this caucus, I eagerly await the outcomes of the above-mentioned engagements with Luthuli House to give guidance in this respect,” Dirks said.
Majodina had said in a statement on Saturday that the caucus had a lengthy discussion on whether the inquiry against Mkhwebane should be set up, which was not about the merits of the case or how the ANC would vote.
“At this stage, the ANC caucus is very clear. It would be premature to conclude whether there will be voting for retention or against the removal of the Public Protector,” she said.