It was never going to be easy to hold an inquiry into the removal from office of Public Protector Busisiwe Mkhwebane.
But it’s a step closer now – three years after the first complaint from the DA in September 2017, the adoption of a new parliamentary rule, a flurry of letters and court action.
On Thursday, National Assembly Speaker Thandi Modise told the programming committee that “in place before me” were the names of members of the independent panel that would make a first assessment on whether the Public Protector had a case to answer.
It’s procedurally complicated. Following a complaint motion, once approved by the speaker, political parties nominate candidates for a three-person independent panel that is the first stage of a two-stage removal procedure under the parliamentary rule Removal of Office Bearers in Institutions Supporting Constitutional Democracy.
Adopted in early December 2019, the rule sets out a 17-step process that may end in the constitutionally required two-thirds vote in the House to remove a Public Protector.
It is also politically tricky. The first attempt to establish this panel in February 2020 faltered as nominees withdrew over possible conflicts due to their current work areas.
“We had to restart,” Modise told the parliamentary programming committee. “It had to be thorough. We had to look at all the candidates and make sure no candidate is used to discredit whatever decision the panel takes.”
That is the clearest signal of the tensions in this process. Since July 2019, Mkhwebane has directed sharply critical correspondence to Modise.
In early July 2019, the Public Protector complained about what she viewed as the speaker’s failure to protect her – in the new Parliament after the May 2019 elections, the DA renewed its request for removal proceedings – and to point out the lack of rules. In early December 2019, the House unanimously adopted the new rule, but on 29 January 2020 Mkhwebane asked Modise to suspend the grossly unfair” rule pending an “amicable” settlement of issues – or face legal action.
Parliament maintained that as the institution to select a Public Protector, it had a role in the removal of a head of a chapter 9 institution, and so it came to legal action. While court papers were exchanged on the interdict application, the Covid-19 hard lockdown in late March 2020 meant the hearing was delayed to mid-August.
We do not need to wait for the court process to be concluded. So, we can proceed at this point in time, we are advised.
On Friday the Western Cape High Court dismissed Mkhwebane’s interdict bid. A hearing on the validity of the parliamentary rule is pencilled in for late November, should the Public Protector still want to pursue that.
On Thursday, after a question from DA Chief Whip Natasha Mazzone, the National Assembly programming committee was told the parliamentary removal inquiry could continue.
“We do not need to wait for the court process to be concluded. So, we can proceed at this point in time, we are advised,” said Secretary to the National Assembly Masibulele Xaso.
What’s needed now is for the speaker to announce the independent panel, and its starting date.
The panel has 30 days to make its recommendation. If it finds there was no case against Mkhwebane, the removal inquiry ends there and then. If the panel recommends that Parliament must proceed, the House must establish an inquiry committee to take the process further.
It’s a process that will not be over any time soon. On Thursday Mkhwebane was a week short of four years into her non-renewable seven-year term.
The Public Protector’s presentation to Parliament’s justice committee asked for more money – R54.5-million for staff, security, wellness and an e-library – and assistance in dealings with the National Prosecuting Authority (NPA) and other organs of state.
