The legal argument for removing the Public Protector

The Public Protector, Advocate Busisiwe Mkhwebane at her office in Pretoria. (Photo: Tebogo Letsie)
The Public Protector, Advocate Busisiwe Mkhwebane at her office in Pretoria. (Photo: Tebogo Letsie)

The Public Protector has shown no sign of considering her position. It is therefore to Parliament that one must turn to resolve the problem, writes Serjeant at the Bar.

The devastating findings by the majority of the Constitutional Court that Public Protector Busisiwe Mkhwebane "was not honest about her engagement during the investigation" into the Reserve Bank's bailout payment to prop up a range of banks which were subsequently acquired by Absa and further misrepresenting under oath have prompted further and more intense calls for her removal from office.

It is perhaps overly optimistic in the context of the global politics shaped by Donald Trump to think that in a democracy, a bearer of so key an office would feel obliged to resign following so sustained and serious a set of adverse findings as those of the Constitutional Court in the majority judgement. Even the minority judgment penned by Chief Justice Mogoeng Mogoeng found it "baffling" that the Public Protector was unable to explain herself even with the benefit of legal representation.

While in many democracies, certainly before the anti constitutionalist moves of Trump and his fellow travellers, resignation would have followed such findings, there has never been this kind of admirable practice in South Africa. Thus it is not surprising that the Public Protector has shown no sign of considering her position. Sadly, therefore, an institution which is critical to the development of constitutional government in this country will continue to limp along, lacking the necessary legitimacy to fulfil its mandate. And, given the findings of the highest court, any new report which is politically contentious will not only be treated with exquisite circumspection but subjected to review proceedings. This impasse has already affected the constitutional health of the country.

For these reasons, it is to Parliament that one must turn to resolve the problem. Leaving aside the politics behind a decision to remove the present Public Protector from office, the legal position may not be a doddle.

The potential problem has been mentioned both by the Public Protector and certain legal commentators. It can be summarised thus: when the EFF litigated in respect of the possible impeachment of then president Jacob Zuma, the Constitutional Court was required to consider Section 89 of the Constitution which provides that the National Assembly may remove the president from office if two thirds of the members thereof vote in favour of removal on the grounds of a serious violation of the Constitution or the law, serious misconduct or inability to perform the functions of office.

The court held that Parliament had not adopted any procedure for determining whether any of these grounds were present to ensure that any such resolution was brought within the confined scope of Section 89. Without a clear procedure impeachment could not be lawfully effected. In this connection the majority of the court held as follows:

"The power to remove the President from office is available to the Assembly only if one of the listed grounds is established. One of those grounds is a serious violation of the Constitution or the ordinary law. What qualifies this ground is the word serious. The second ground is serious misconduct and the third is inability to perform the functions of the office. None of these grounds is defined in the Constitution.

[It is evident that the drafters left the details relating to these grounds to the National Assembly to spell out. But the drafters could not have contemplated that members of the assembly would individually have to determine what constitutes a serious violation of the law or the Constitution and conduct on the part of the president which, in the first place, amounts to misconduct and whether, in the second place, such conduct may be characterised as serious misconduct. If this were to be the position, then we would end up with divergent views on what is a serious violation of the Constitution or the law and what amounts to serious misconduct envisaged in the section.]

"And since the determination of these matters falls within the exclusive jurisdiction of the Assembly, it and it alone is entitled to determine them. This means that there must be an institutional pre-determination of what a serious violation of the Constitution or the law is. The same must apply to serious misconduct and inability to perform the functions of the office. The Acting Speaker describes the first two grounds as exhibiting wrong-doing on the part of the President. I could not agree more. This is evident from the language of section 89(2) which stipulates that a President removed from office on any of these two grounds may lose benefits. Once more, it is left to the Assembly to determine circumstances under which the President removed from office on one of those grounds may forfeit benefits. For the impeachment process to commence, the Assembly must have determined that one of the listed grounds exists. This is so because those grounds constitute conditions for the President's removal. A removal of the President where none of those grounds is established would not be a removal contemplated in section 89(1). Equally, a process for removal of the President where none of those grounds exists would amount to a process not authorised by the section."

Accordingly the argument runs that, absent a clearly designated mechanism, the National Assembly would not be able to remove the Public Protector. However, Section 194 of the Constitution which provides for the removal of the Public Protector is worded differently to Section 89. It provides that she can only be removed on grounds of misconduct, incapacity or incompetence by way of a finding to that effect by a committee of the National Assembly and thereafter a two thirds majority of the members of the National Assembly.

Understandably, unlike the president, the Public Protector is subject to scrutiny by a committee, being the justice portfolio committee to which she regularly reports. In addition the grounds for removal of the Public Protector are different from those that troubled the Constitutional Court in respect of the president. For these reasons, it would appear that the justice committee could conduct the necessary hearing. The charge would, at the very least, be misconduct and incompetence based on the clear judgment of the highest court in the country.

As is her legal right the Public Protector could approach the courts for relief, but that alone should not justify the National Assembly from sitting passively, thereby preventing this crucial office from being rebooted to effectively perform its crucial mandate.

- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.

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