Public Protector’s legal challenge of impeachment rules may amount to fruitless and wasteful expenditure

Public Protector Busisiwe Mkhwebane last week claimed that the rules adopted by the National Assembly (NA) to regulate the removal from office of the heads of chapter 9 bodies, were unconstitutional and invalid. She is threatening to challenge the constitutionality of these rules in court. But any legal challenge may well amount to fruitless and wasteful expenditure and may expose the Public Protector to another personal cost order. This is because the existing law is emphatically against her.

In 2017 the Constitutional Court ruled in Economic Freedom Fighters v Speaker of the National Assembly that the National Assembly (NA) needed to adopt special rules to regulate the impeachment of the President in accordance with section 89 of the Constitution. The court held that such rules should at very least define what conduct would meet the requirements for impeachment, and should provide for a preliminary enquiry, during which the NA could determine whether, factually, grounds for impeachment exist. Such rules were then drafted by the NA.

Because there are striking similarities between section 89 and section 194(1) of the Constitution (the latter provides for the removal of the Public Protector and the Auditor-General from office), the Public Protector last year (correctly, in my view) argued that the NA was required to pass similar rules to regulate the removal of the Public Protector and the heads of other Chapter 9 bodies from office. The Public Protector now, opportunistically, argues that the rules subsequently drafted in accordance with the principles set out in the Economic Freedom Fighters judgment are unconstitutional.

First, the Public Protector argues that her rights have been infringed because the Speaker had determined that the complaint was in order and had forwarded it to be considered by an independent panel of experts without offering her an opportunity to provide her side of the story.

In accordance with the Constitutional Court jurisprudence, the newly adopted rules allow any MP to lodge a complaint against the head of a chapter 9 institution. The Speaker must refer the complain to an independent panel if it is submitted by an MP in the form of motion which is limited to a clearly formulated and substantiated charge: “which must prima facie show that the holder of a public office: committed misconduct; is incapacitated; or is incompetent.”

The Public Protector seems to suggest that without giving her an opportunity to give her side of the story it would be impossible to determine whether there is a prima facie case against her. The argument is wrong in law and wrong in fact.

Factually, there can be no dispute that a prima facie case exists against the Public Protector. It is well known that first the High Court and then the Constitutional Court made scathing findings about the incumbent Public Protectors lack of honesty and her incompetence. The Constitutional Court held that she “acted in bad faith and in a grossly unreasonable manner” and that her “conduct falls far short of the high standards required of her office.” If this does not provide prima facie evidence of impeachable conduct, nothing will.

From a legal perspective, there is an even more obvious problem with this Public Protector’s argument. The Public Protector and her lawyers seem to be unaware that the Constitutional Court’s majority judgment in Economic Freedom Fighters suggested that every MP has the right to initiate impeachment. It may well be – in line with the principle established in Mazibuko v Sisulu – that the rules are not permitted to block MPs from having their complaint processed. Moreover, the Court explicitly held that there was no obligation at the preliminary stage to give the person against whom a complaint had been lodged an opportunity to give their side of the story. The Court thus held that:

[A]ny process for removing the President from office must be preceded by a preliminary enquiry, during which the Assembly determines that a listed ground exists. The form which this preliminary enquiry may take depends entirely upon the Assembly. It may be an investigation or some other form of an inquiry. It is also up to the Assembly to decide whether the President must be afforded a hearing at the preliminary stage.

The first argument therefore has no prospect of success.

As Marian Merten has already pointed out in a Daily Maverick column, the claim that the rules do not provide ample opportunity for the Public Protector to give her side of the story, is false. The rules provide two different opportunities for the Public Protector to respond to the complaint against her.

The new rules require the Speaker to appoint an independent panel to conduct a preliminary inquiry on the complaint to establish if one or more of the grounds for impeachment are present. This the Speaker must do after establishing that the complaint is in order. The independent panel must consist “of three fit and proper South African citizens, which may include a judge, and who collectively possess the necessary legal and other competencies and experience to conduct such an assessment”.

In terms of rule 129X the independent panel – who must act in an independent and impartial manner – must, within 30 days of its appointment, conduct and finalise a preliminary assessment to establish whether there is prima facie evidence to show that the head of a chapter 9 institution committed misconduct; is incapacitated; or is incompetent. The panel is required to provide the person against whom a complaint has been made with copies of all information available to the panel relating to the assessment and:

must provide the holder of a public office with a reasonable opportunity to respond, in writing, to all relevant allegations against him or her.

The Public Protector is therefore afforded the opportunity to respond – even at this preliminary stage of the process – despite the fact that the Constitutional Court said this was not required.

The role of the independent panel is important as it helps to safeguard the independence of the Public Protector and the heads of other chapter 9 bodies. As the heads of such bodies can only be removed if one of the grounds for removal – in fact – exists, a finding by the independent panel that there is not sufficient prima facie evidence to warrant removal will almost certainly kill the complaint as it would be irrational and therefore unlawful for the NA to proceed with removal despite a finding by an independent panel that no grounds for removal exist. This step will help to prevent the politicians in the NA from removing the head of a chapter 9 body for purely political reasons (although, as we shall see political considerations do play a role once grounds for removal have been confirmed).

The second step is for the NA to consider the independent panel’s recommendation and to decide whether to proceed with a full inquiry before a Committee of the NA. The Committee will have to conduct an enquiry to establish the veracity of the charges and must then report to the Assembly thereon. It is at this point when an actual enquiry takes place and in which the Public Protector will enjoy all the rights she claims she is being denied. In terms of rule 129AD:

The committee must afford the holder of a public office 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, provided that the legal practitioner or other expert may not participate in the committee.

It is the Committee that ultimately decides on whether to recommend removal. It cannot do so unless, as a matter of fact, grounds for removal exist. If the committee does recommend removal, the 400 members of the NA is then required to vote on the matter and if more than 266 members of the NA vote in favour of removal the President will have to remove the head of the chapter 9 body from office. The President has no discretion in the matter so cannot be conflicted either.

The Public Protector also argues that the process for removing her would be unconstitutional because parties and individuals against whom she have made findings in the past and/or parties or individuals she is fighting in court, will ultimately decide on whether she should be removed from office. She claims such MPs are therefore conflicted and should have to recuse themselves.

This argument is misguided as it wrongly assumes that when the NA decides on the appointment or removal of the heads of chapter 9 bodies it acts like a court or tribunal. Of course, MPs are politicians, not judges and the judicial rules of recusal can never apply to MPs. MPs are elected to the NA because of their loyalty to a particular political party, are subject to party discipline and are by definition partisan. If MPs had to recuse themselves because they are reasonably feared to have prejudged a matter, few MPs would ever be permitted to vote on any matter in the NA.

It is for this reason that Floyd Shivambu and other EFF MPs will not be required to recuse themselves from voting on the removal of Busisiwe Mkhwebane just because they have expressed fervent support for her. The same holds true for ANC MP Supra Mahumapelo and DA MP Glynnis Breytenbach. While it would be unconstitutional and unlawful for the NA to remove the Public Protector from office in the absence of clear factual evidence that one of the grounds that permit removal are present, individual MPs have a political discretion to vote for or against impeachment where grounds for impeachment exist.

Because this is ultimately a political discretion, it is difficult to see how any court will agree with Mkhwebane that some MPs will have to recuse themselves from voting on removal.  As most MPs belong to a party against whose leaders she has made adverse findings, or have expressed a view about her competence or not, almost every single MP is already conflicted if you apply the same rules applicable to judges. Which is why the same rules should not and cannot legally be applied.

It is true that the Constitutional Court held in United Democratic Movement v Speaker of the National Assembly that MPs must choose the Constitution over party loyalty when required to do so. It held in that case that:

Central to the freedom ‘to follow the dictates of personal conscience’ is the oath of office.  Members are required to swear or affirm faithfulness to the Republic and obedience to the Constitution and laws. Nowhere does the supreme law provide for them to swear allegiance to their political parties, important players though they are in our constitutional scheme. Meaning, in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail.

Unfortunately, most MPs will ignore this injunction from the Constitutional Court and will continue to choose party over principle or conscience (assuming there is a conscience). Most MPs will ultimately vote on the impeachment of the Public Protector based on party affiliation, not based on either the facts, or on what is best for the voters, or on what is the principled and ethical thing to do.

However, following the UDM judgment, MPs should not be required by their parties to vote against the impeachment of the Public Protector merely because this would gain a political advantage for the party. Given that the Public Protector is dishonest and incompetent (as confirmed by the highest court in the land), individual MPs with a conscience may well conclude that in order to uphold the Constitution the Public Protector must be removed from office. But of course, this is easier said than done, because MPs who follow their conscience may well face serious repercussions and may ultimately be expelled from their parties.

Spare a thought for those honest MPs.

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