DA proposes rules to remove heads of Chapter 9 institutions

Public Protector advocate Busisiwe Mkhwebane praying. (Balise Mabona, News24)
Public Protector advocate Busisiwe Mkhwebane praying. (Balise Mabona, News24)

The DA has submitted draft rules for the removal of the head of a Chapter 9 institution, such as the Public Protector.

DA chief whip John Steenhuisen, who brought the current request before Parliament to institute removal proceedings against Public Protector Busisiwe Mkhwebane, said on Tuesday he had written to National Assembly Speaker Thandi Modise to propose draft rules for the removal of the head of a Chapter 9 institution.

This after the portfolio committee on justice and correctional services decided to refer the matter to the rules committee last week to come up with such rules. It is at this stage unclear when the rules committee will meet on the matter.

"The decision by the committee accords with a legal opinion obtained by the DA that advised this same course of action in order to ensure legal and procedural certainty to all parties involved and protect the integrity of the process," Steenhuisen said.

"I submit these draft rules to your office in the hope that it can be of assistance to the rules and programming committee when it meets to draw up rules to govern the process of considering the removal of the Public Protector," Steenhuisen wrote to Modise.

"The DA believes Parliament should move on this matter with an appropriate sense of urgency. With a set of draft rules already in circulation, the committee's work will hopefully be made easier and the process can be dealt with speedily."

In his statement on the matter, he said while Parliament should proceed with great urgency on it, adding the DA also believed due process should be followed.

"It is to marry the need for urgency with the need for proper rules and procedures to be put in place first that the DA has taken it upon itself to submit a set of draft rules to the speaker in order to hopefully assist the programming and rules committee in the task that lies before it.

"The DA believes South Africans deserve a Public Protector that truly protects the rights and interests of the public against abuses by the state, and we will not rest in our efforts to ensure that advocate Mkhwebane is removed and a fit and proper successor installed in her place."

Steenhuisen's draft rules resembles the rules Parliament adopted last year for the removal of the president in terms of Section 189 of the Constitution, a process often called impeachment, even though the phrase is not used in the South African Consitution.

According to Steenhuisen's draft rules, any member of the National Assembly would be able to initiate proceedings to remove the head of a Chapter 9 institution by a substantive motion.

This motion would have to show prima facie evidence that the person in question committed misconduct, cannot perform the functions of the office or is incompetent in the performance of the functions of the office.

All evidence must be attached to the motion, but there would be an opportunity to provide further evidence if it becomes available. The motion would also have to be consistent with the Constitution.

Steenhuisen's draft rules further provide for the establishment of a section 194 committee. Section 194 is the section of the Constitution dealing with the removal of a head of a Chapter 9 institution.

Half of the members of the committee must be opposition MPs, represented proportionally to the number of seats they hold.

The committee must provide the Public Protector, Auditor-General or a member of a commission concerned immediately with copies of the charges and all information before the committee relating to the enquiry.

The committee must consider whether the suspension of the Public Protector, Auditor-General or member of a commission concerned is required, and shall report thereon to the president for a decision under Section 194(3)(a) of the Constitution.

"The committee must ensure that the enquiry is conducted in a reasonable and procedurally fair manner, within a reasonable timeframe," read Steenhuisen's draft rule.

"The committee must afford the Public Protector, Auditor-General or a member of a commission concerned the right to be heard in his or her own defence and to be assisted by a legal practitioner or other expert of his or her choice."

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