Pierre de Vos, Constitutionally Speaking
28 August 2018
In December 2017 the Constitutional Court ordered the National Assembly (NA) to make rules regulating the impeachment of a President in terms of section 89(1) of the Constitution. What none of us knew at the time, was that Public Protector Busisiwe Mkhwebane would rely on the judgment in Economic Freedom Fighters and Others v Speaker of the National Assembly to force the NA to adopt specific rules to deal with the removal of the Auditor-General, the Public Protector and the members of other Chapter 9 Commissions. This is not a bad thing, as new rules will provide for an independent and impartial assessment of whether removal is justified in each case.
Last month South Africa’s Constitutional Court confirmed that Public Protector, Busisiwe Mkhwebane, had acted in bad faith; did not fully understand her constitutional duty to be impartial and perform her functions without fear, favour or prejudice; and had been dishonest by advancing several falsehoods under oath. On its face, the findings of the Constitutional Court warrant the removal of Mkhwebane from office in terms of section 194(1) of the Constitution.
Before the NA could start the process to determine whether removal would be appropriate, Mkhwebane wrote to NA Speaker Thandi Modise, saying she would meet her in court if Parliament tried to remove her. Her main argument was that Parliament has not adopted any rules regulating the process for the removal of the Public Protector or members of other Chapter 9 bodies.
Section 194(1) of the Constitution provides for the Public Protector’s removal from office on grounds of misconduct, incapacity or incompetence, but only if the removal is supported by at least two-thirds of the members of the NA. This is an important provision as it provides a degree of security of tenure for the Public Protector. It prevents the removal of the Public Protector on the whims of any one political party.
The wording of section 194(1) of the Constitution is similar (but not identical) to the wording of section 89 of the Constitution. Section 89 provides for the impeachment of a President but imposes more stringent requirements for removal than section 194 does. While a President can only be removed for a serious violation of the Constitution or the law or serious misconduct, the Public Protector can be removed for any misconduct and any kind of incompetence.
Despite these differences, in both cases the NA is given the task of deciding on removal, but only after it had determined whether one or more of the grounds for impeachment exist. As the Constitutional court explained in Economic Freedom Fighters and Others v Speaker of the National Assembly:
For the impeachment process to commence, the Assembly must have determined that one of the listed grounds exists. This is so because those grounds constitute conditions for the President’s removal… Therefore, any 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.
A decision on whether one or more of the grounds for removal exist is a factual question and not a political one. It would therefore not usually be appropriate for members of an ad hoc committee of the NA (voting along party lines) to determine whether any of these grounds exist.
Similarly, the rules that will now be drafted to regulate the process for the removal of the Public Protector, the Auditor-General and other members of Chapter 9 bodies, may require an impartial process to determine whether grounds exist for removal from office. When drafting these new rules to give effect to the principle established by the Constitutional Court in the impeachment case, the rules committee will be able to draw on the rules regulating the impeachment of a President.
As noted above, the latter rules were drafted to give effect to the Constitutional Court ruling on the impeachment of a President. The rules require the Speaker to refer any impeachment motion and any supporting evidence to a panel of three independent legal experts. The panel, which the Speaker appoints after consulting political parties represented in the NA, must assess if there is sufficient evidence for Parliament to proceed with a section 89 inquiry. The panel must function impartially and without fear, favour or prejudice.
If the independent and impartial panel confirms that there is sufficient evidence to warrant impeachment of a President, the NA must then decide whether to proceed with an inquiry. If it decides to proceed with an inquiry, the matter must be referred to a specially constituted Impeachment Committee. This Impeachment Committee will investigate, establish the veracity (and, where required, the seriousness) of the charges against a President and make a recommendation to the NA. If the Committee recommends that a President be removed from office, the question must be put to a vote.
It is the absence of similar rules to deal with the impeachment of those who head up Chapter 9 institution, that irked the Public Protector and led her to threaten the Speaker with legal action. I assume the NA will adopt a similar procedure for the removal of the Auditor General, the Public Protector and members of other Chapter 9 Commissions.
There are benefits to the procedure now regulating the impeachment of the President. As we know from previous attempts to impeach President Jacob Zuma, when MP’s (performing their chosen roles for the television cameras) are called upon to determine whether grounds for impeachment exist, they will vote along party lines for or against the removal – regardless of the facts.
While the rules for impeachment of the President appropriately still leave the ultimate decision on whether to impeach in the hands of MPs, it forces MPs to engage with the relevant facts as confirmed by an independent panel of legal experts. Of course, many MPs exist in a fact-free zone and will continue to make claims that are demonstrably false. But the rules will now force them to do so in the face of an impartial factual finding by a panel of legal experts.
If the panel of experts confirm that sufficient grounds exist for removal, MPs who do not support removal will have to justify why they are supporting a President who is guilty of serious misconduct or a serious violation of the Constitution or the law.
Conversely, the procedure also guards against frivolous and factually unfounded attempts to impeach the President. MPs of opposition parties will always be tempted to try and use section 89 to embarrass the suiting President by alleging that he or she is guilty of a serious violation of the Constitution or the law or serious misconduct – even where there is little evidence to back this up. Where the independent panel of legal experts find that there are no grounds for impeachment, this would embarrass the opposition party who tabled the impeachment motion.
The rules committee has not yet considered what rules to adopt to regulate the removal of the Public Protector, the Auditor-General and members of other Chapter 9 bodies. If one assumes that the Constitutional Court judgment in Economic Freedom Fighters and Others v Speaker of the National Assembly requires the adoption of such rules, the process to remove Mkhwebane from office will have to wait until such time as new rules have been adopted.
Meanwhile attention will shift back to the courts where several of the Public Protector’s most controversial and badly drafted reports are being challenged. As the adverse judgments against the Public Protector pile up, expect the campaign to discredit the judiciary to pick up steam and to become increasingly shrill and unhinged.