The Public Protector Impeachment Process: How The Enquiry Resumes

Introduction

On 4 February 2022 the Constitutional Court handed down judgment in the case of Speaker of the National Assembly v Public Protector; Democratic Alliance v Public Protector.¹ That judgment ruled on the constitutionality of the Rules adopted by the National Assembly for the removal of heads and commissioners of Chapter 9 institutions. The import of this judgment is that the suspended impeachment process of the Public Protector, Adv Busisiwe Mkhwebane, can now resume.

This brief examines the outcome of the litigation, the effect thereof on the current impeachment process of the Public Protector and indicates what may be expected going forward. But at the outset, it is necessary to remind ourselves of the framework of the Rules and the history of this specific impeachment process.

The Rules Regulating The Removal Process

Section 194 of the Constitution makes provision for the removal from office of the heads and commissioners of the various Chapter 9 institutions on the grounds of misconduct, incapacity or incompetence.² On 3 December 2019, the National Assembly, to whom Chapter 9 institutions are accountable, adopted the Rules regulating the removal of the office-bearers of these institutions.³

The removal process consists of 17 steps which are initiated by filing a notice to remove an incumbent from office, with the Speaker of the National Assembly. If the Speaker is satisfied that the motion complies with the criteria set out in the Rules, the Speaker proceeds to appoint an independent panel⁴ tasked with the duty to determine whether a prima facie case for the removal of the office-bearer exists.⁵ The panel must submit a report containing its recommendations and reasons therefore to the Speaker. Thereafter, the report is considered by the National Assembly to determine whether to proceed with the removal process in terms of section 194 of the Constitution.⁶

Should the process proceed, a committee consisting of members of the National Assembly is established to conduct a formal enquiry.⁷ The Rules afford the office-bearer the right to be heard and to legal representation during the enquiry. However, the legal representative may not participate in the enquiry.⁸ The committee must produce a report with its findings, recommendations and reasons for the recommendations.⁹ If the committee recommends that the office-bearer should be removed, the removal must be placed before the National Assembly to vote in terms of section 194(2) of the Constitution. If two-thirds of the members of the National Assembly vote in favour of the removal, the office-bearer must be removed by the President in terms of section 194(3)(b) of the Constitution.

The history of this removal process

Since her appointment to the office on 19 October 2016, several of the Public Protector’s reports were successfully challenged in various courts and adverse findings were made against her.¹⁰ On a number of occasions, the Democratic Alliance attempted, albeit unsuccessfully, to initiate the process of removing the Public Protector from office. These motions were voted against;¹¹ lapsed,¹² or were withdrawn.¹³ On 21 February 2020, after the Rules were adopted by the National Assembly, the Democratic Alliance filed another notice to remove the Public Protector from office. The motion was approved by the Speaker and it was referred to an independent panel as prescribed by the Rules. The panel for this motion was chaired by Judge Bess Nkabinde. The panel submitted its report on 24 February 2021, finding that a prima facie case for the removal of the Public Protector exists.¹⁴

During the process, the Public Protector applied to the High Court to challenge the constitutionality of the Rules on twelve separate grounds.¹⁵ She was successful on two of these grounds. The first was that the appointment of a Judge to the independent panel was undesirable and breached the separation of powers doctrine. The High Court severed the reference to “Judge” from this part of the Rules. The second ground was that the Rules limited her right to full legal representation during the formal enquiry. The High Court also severed this limitation from the Rules to allow legal representation during the hearing.

The Constitutional Court Judgment

The Speaker and the Democratic Alliance lodged two separate applications for leave to appeal directly to the Constitutional Court, to challenge the two grounds that the High Court upheld. In turn, the Public Protector lodged a conditional application for leave to cross-appeal against the ten grounds that the High Court dismissed. This brief will only examine the two grounds that were upheld by the High Court because the Constitutional Court, too, dismissed the ten other grounds.

The Appointment Of A Judge To The Independent Panel

The Constitutional Court had to determine whether it is permissible¹⁶ and desirable¹⁷ to appoint a Judge to the independent panel and if such an appointment would breach the separation of powers doctrine.¹⁸

The Court held that it will be permissible for Judges to fulfil non-judicial roles unless that role is incompatible with their judicial office. In the instant matter, the Court found that Judge Nkabinde’s appointment to the independent panel, tasked to determine whether a prima facie case exists for the removal of the Public Protector from office, was compatible with her judicial office.¹⁹ The Court reasoned that the Judge, as a member of the panel, does not play any decision-making role in the removal process. Instead, the role of the Judge is that of an impartial and independent advisor, which justifies the desirability to have a Judge on that panel.²⁰ The Court also held that the appointment of the Judge to the panel did not breach the separation of powers doctrine because the impartiality, independence and lack of bias on the part of a Judge make them perfectly placed to perform the functions required of the panel.²¹ The Court upheld the appeal against this ground and set aside the order of the High Court that severed the reference to “Judge” from the Rules.

The Limitation Of The Right To Full Legal Representation During The Formal Enquiry

The reasonableness and procedural fairness of the formal enquiry can only be secured, held the Court, if the rights of those incumbents without legal qualification or background are sufficiently protected.²² Accordingly, any limitation of the right to full legal representation during the enquiry must be deemed unconstitutional. As remedy, the Court declared the limitation unconstitutional and severed it from the applicable rule. The Rules now afford the incumbent who appears before the committee the right to full legal representation during the enquiry.²³

The declaration of constitutional invalidity does not have any effect on the steps that have been taken thus far in the removal process. This means that the removal process can proceed and the Public Protector will face a formal enquiry during which she will enjoy the right to be legally represented.

Where to from here?

As stated above, the independent panel submitted its report on 24 February 2021. The National Assembly adopted this report on 16 March 2021 and the Section 194 committee was established on 7 April 2021 and was subsequently expanded on 25 May 2021. On 28 July 2021, the committee presented its timeline for the enquiry and the finalisation of the report that has to be submitted to the National Assembly. The committee indicated that it would complete its work by 22 January 2022. However, this process was halted by the litigation which is discussed above. The judgment of the Constitutional Court has now cleared all of the concerns that existed regarding the application of the Rules.

On 22 February 2022, the committee announced that its process will proceed, even though the Public Protector announced that she intends to approach the Constitutional Court with an application to have the judgment and order of that Court rescinded. The Public Protector has not yet filed her application and there is thus no legal basis prohibiting the committee from continuing with the process.

The committee has adopted its terms of reference for this particular enquiry. They provide that the committee and the Public Protector will be allowed to call, question and cross-examine witnesses. The evidence of the witnesses will be presented by an evidence leader and the witnesses will appear under oath or affirmation. The Public Protector will then appear before the committee with her legal representative by her side. The participation of the representative will include making opening and closing statements, cross-examination and raising matters related to the process. The committee will be able to ask questions directly of the Public Protector, to which she will have to respond. The terms of reference also make provision for public participation during the process of the committee. The purpose of public participation is to call for evidence from the public that will assist the committee with its task. The committee will not consider any personal views that the public has of the Public Protector. How public participation will be facilitated has not yet been determined. The committee is obliged to ensure that the enquiry is conducted in a reasonable and procedurally fair manner. It is set to begin on 4 May 2022.

Before the report of the committee is presented to the National Assembly, the committee must make the report available to the Public Protector. The Public Protector will then be afforded a reasonable opportunity to make written representations on the findings and recommendations of the committee, which it must consider.

The committee is expected to conclude its work by 22 September 2022. Thereafter the committee’s report will be presented to the National Assembly. If the committee recommends that the Public Protector must be removed from office, a two-thirds majority vote is required to support her removal. Thereafter, the President is required to effect removal from office.

Jos Venter
Legal Researcher
jos@hsf.org.za