Ruling leaves impeachment up in air
Parliament may have been sent back to the drawing board on public protector case
Wednesday’s judgment on the constitutionality of parliament’s impeachment rules for the heads of chapter nine institutions may prove to be a headache for speaker of parliament Thandi Modise.
As the Western Cape High Court was deliberating on its judgment, parliament was beavering away at an impeachment process against public protector Busisiwe Mkhwebane. Just over a week before the judgment was delivered, it was announced that a chair had been appointed to the parliamentary committee that would conduct the impeachment inquiry.
But now the judgment has cast doubt on the lawfulness of the process so far, without making clear what should happen going forward.
Mkhwebane had asked the court to declare that the newly adopted rules, in totality, were unconstitutional. Alternatively, she asked it to set aside the decision by parliament to adopt the rules, or the decision by the speaker to approve the motion to adopt the rules. Had any of these orders been granted, it would have been clear that the whole rule-making process had to begin anew.
The court did not grant these in-totality orders. But it did find the rules were unconstitutional in two ways. One was that the rules denied full legal representation for Mkhwebane (or any head of a chapter nine institution) at the parliamentary committee stage of the impeachment process.
The legal representation finding is not a problematic one for the process involving Mkhwebane, because the parliamentary committee phase is yet to begin.
But the second finding of unconstitutionality is trickier on this score.
The court found it was unconstitutional that there was a judge on the independent panel that conducts a preliminary assessment of whether there is a prima facie case of misconduct, incompetence or incapacity. The appointment of a judge to the panel was “undesirable”, said judge Elizabeth Baartman on behalf of a unanimous full bench.
“The process is politically charged. The complaints emanate from scathing judicial rebuke,” she said. She also found it was a breach of the separation of powers to have a judge on the independent panel.
The court said this unconstitutionality could be rectified by “severance” — by cutting words about judges from the rule that provides for the composition and appointment of the panel.
But in Mkhwebane’s case there has already been an independent panel — chaired by retired Constitutional Court justice Bess Nkabinde — whose report found that Mkhwebane had a case to answer for both misconduct and incompetence.
In principle, if a law (or rule) is unconstitutional, it always was. So unless the judgment is set aside on appeal, this means the panel, and its report, were unlawful.
What does this mean for the rest of the process?
When the speaker argued her case, she described the rules as setting out a series of “steps”. If an earlier step is invalid, it may raise questions over the lawfulness of any subsequent steps.
The judgment is clear that the independent panel’s report is not binding on the National Assembly; and parliament is “at liberty to follow or ignore the recommendations” — suggesting that perhaps the unconstitutionality of the panel’s report is not fatal to the rest of the process.
But in her own affidavit, Modise said that on March 16, parliament “considered the report of the independent panel and resolved that the [parliamentary committee impeachment] inquiry must be proceeded with”.
This could imply that the report was the basis of the decision by parliament to have an impeachment inquiry. So one — now unconstitutional — step led to the other, and the whole thing must come crashing down like a house of cards. Already the public protector’s office has said in a statement: “It was only because of the findings of the panel that the present parliamentary committee was consequently appointed after the tabling of the panel report in the National Assembly.
“It follows therefore that the present process must be halted with immediate effect.”
There may be an argument that parliament can press ahead notwithstanding. But if it does, there is likely to be a fight about it, with a possible interdict application by Mkhwebane. This fight would likely happen whether or not there is an appeal, and could lead to delays.
If there is a legal basis to press ahead, it may be the DA, which brought the impeachment motion, and not the speaker, that leads the way. Despite accusations of bad faith by Mkhwebane — rejected as “unwarranted” by the court — Modise has been careful to keep to a nonpartisan approach, coming to court to defend the rules, but not taking the side of any political party.