Don’t you dare, public protector warns parly
● Public protector Busisiwe Mkhwebane has warned parliament to back off or she will go to court to defend her position.
Mkhwebane has written to National Assembly speaker Thandi Modise to say she will meet her in court if parliament tries to remove her. She has also accused the speaker of violating the constitution for acceding to a DA-sponsored proposal that parliament resume a process to probe her fitness to hold office.
On Friday Mkhwebane released a report that makes adverse finding against President Cyril Ramaphosa in relation to a donation to his ANC presidential campaign.
Parliamentary spokesperson Moloto Mothapo said Modise had responded to Mkhwebane. He said the process to probe her fitness would continue.
Mkhwebane’s spokesperson, Oupa Segalwe, yesterday said they had not received Modise’s response. He said though Mkhwebane knew what to do next, she was not prepared to discuss the matter in public.
In a strongly worded letter, Mkhwebane accuses Modise of violating section 194 of the constitution and rule 88 of the National Assembly by referring to the justice committee a motion by DA chief whip John Steenhuisen that removal proceedings be instituted against her after several court rulings that called her competence into question.
Mkhwebane argues that though section 194 details grounds for removing her, such as “misconduct, incapacity or incompetence”, parliament currently has no rules on the procedure to follow to effect her removal.
“Unlike in cases of removal of judicial officers or the president, there are no rules specifically adopted by the National Assembly to deal with the removal of the public protector.
“Instead the [justice] committee is given a free hand to adopt a clearly unlawful and unconstitutional process where the public protector is simply called to a meeting and berated about cases that are pending before the Constitutional Court and the Supreme Court of Appeal,” says Mkhwebane in her letter.
Professor Pierre de Vos, a scholar of constitutional law at the University of Cape Town, said though “the tone of the letter was quite angry and intemperate”, Mkhwebane had a plausible argument about the lack of procedure on removing her from office.
De Vos pointed out that the Constitutional Court had previously reprimanded parliament for not having a procedure to follow in removing the president in terms of section 89 of the constitution, a ruling Mkhwebane is now relying on.
“Where the public protector might have a point is that the rules might be lacking. They don’t provide for procedures to impeach the public protector.
“Another reason is to create a process for factual assessment whether the public protector is guilty of misconduct and so on. That is a precondition for removal, so the Constitutional Court found in the impeachment case that the rules must create a special preprocess for this before MPs vote on impeachment,” he said.
In his impeachment motion submitted to Modise in May, Steenhuisen cited a ruling by the North Gauteng high court which found that Mkhwebane had acted unconstitutionally when she instructed parliament to change the mandate of the Reserve Bank. He also mentioned her report on the Vrede dairy farm scandal, which was declared unconstitutional by the same court.
Section 194 of the constitution deals with removal proceedings against office bearers at Mkhwebane’s level, whereas rule 88 prevents MPs from attacking their integrity or competence unless they submit a substantive motion.
Though Steenhuisen has done so, Mkhwebane has remained unshaken, arguing Modise has failed to present the motion to her. Mkhwebane says if Modise had submitted it to her, she would have advised her she is appealing the court rulings on which Steenhuisen is relying, and there would be no need for the inquiry to go ahead.
But parliamentary figures familiar with the matter said the pending court decisions do not prevent the legislature from fulfilling its duties as a separate arm of state.
Opposition and some ANC MPs have labelled Mkhwebane incompetent.
Last month, minerals minister Gwede Mantashe said Mkhwebane had entered a political space after her Ramaphosa probe.
But Mkhwebane has remained defiant and accuses Modise of failing to protect her.
“The speaker is flouting her obligation to assist and protect me so as to ensure my dignity and effectiveness. She ignored the fact that I have lodged an appeal and allowed MPs to threaten my removal on the basis of the very judgments I am appealing,” she says in the letter.
Mkhwebane says Modise should have invoked house rule 89 to prevent MPs pronouncing on matters before the courts.
“This reaction by the speaker is precisely what fuels the hostile and misleading narrative in the court of public opinion and serves to undermine public confidence in the public protector, who is constantly placed under siege by parliament.
“Tellingly, the speaker has remained silent even when certain MPs, including Steenhuisen, have ignored the provisions of rule 89 and launched personal attacks against the public protector.
“Regrettably, the speaker’s inability and unwillingness to enforce rule 89 will compel the public protector to approach the courts to seek a declaratory order and interdict requiring the speaker’s compliance with section 181 of the constitution and rule 88 and rule 89.
“That would be the only way to ensure that the process of undermining the efficacy and independence of the public protector will not proceed unabated.”
But De Vos said invoking rules 88 and 89 would have amounted to censoring MPs and preventing them from holding Mkhwebane accountable.
“The argument that there was an infringement of rule 88 and 89 does not look to me very credible ... she’s really saying the speaker should have censored the MPs. Whether the problem is with the rules or the attitude of the public protector, people can decide.
“But it’s a little bit odd to make an argument that you cannot be criticised by the people that hold you accountable [yet] criticism must be based on what you’ve done and reasoned,” he said.
The Constitutional Court will tomorrow deliver a ruling on whether Mkhwebane is personally liable for a portion of the legal costs relating to the Reserve Bank’s successful court challenge of her report into the lifeboat the central bank granted to Bankorp, now Absa, in the early ’90s.