/The legal argument for removing the Public Protector

The legal argument for removing the Public Protector

2019-07-26 08:52

The Public Protector has shown no sign of considering her position. It is therefore to Parliament that one must turn to resolve the problem, writes Serjeant at the Bar.

The
devastating findings by the majority of the Constitutional Court that Public
Protector Busisiwe Mkhwebane “was not honest about her engagement during
the investigation” into the Reserve Bank’s bailout payment to prop up a
range of banks which were subsequently acquired by Absa and further misrepresenting
under oath have prompted further and more intense calls for her removal from
office.

It is
perhaps overly optimistic in the context of the global politics shaped by
Donald Trump to think that in a democracy, a bearer of so key an office would
feel obliged to resign following so sustained and serious a set of adverse
findings as those of the Constitutional Court in the majority judgement. Even
the minority judgment penned by Chief Justice Mogoeng Mogoeng found it “baffling”
that the Public Protector was unable to explain herself even with the benefit
of legal representation.

While in
many democracies, certainly before the anti constitutionalist moves of Trump
and his fellow travellers, resignation would have followed such findings, there
has never been this kind of admirable practice in South Africa. Thus it is not
surprising that the Public Protector has shown no sign of considering her
position. Sadly, therefore, an institution which is critical to the development
of constitutional government in this country will continue to limp along,
lacking the necessary legitimacy to fulfil its mandate. And, given the findings
of the highest court, any new report which is politically contentious will not
only be treated with exquisite circumspection but subjected to review
proceedings. This impasse has already affected the constitutional health of the
country.

For these
reasons, it is to Parliament that one must turn to resolve the problem. Leaving
aside the politics behind a decision to remove the present Public Protector
from office, the legal position may not be a doddle.

The
potential problem has been mentioned both by the Public Protector and certain
legal commentators. It can be summarised thus: when the EFF litigated in
respect of the possible impeachment of then president Jacob Zuma, the
Constitutional Court was required to consider Section 89 of the Constitution
which provides that the National Assembly may remove the president from office
if two thirds of the members thereof vote in favour of removal on the grounds
of a serious violation of the Constitution or the law, serious misconduct or
inability to perform the functions of office.

The court
held that Parliament had not adopted any procedure for determining whether any
of these grounds were present to ensure that any such resolution was brought
within the confined scope of Section 89. Without a clear procedure impeachment
could not be lawfully effected. In this connection the majority of the court
held as follows:

“The power
to remove the President from office is available to the Assembly only if one of
the listed grounds is established. One of those grounds is a serious violation
of the Constitution or the ordinary law. What qualifies this ground is the word
serious. The second ground is serious misconduct and the third is inability to
perform the functions of the office. None of these grounds is defined in the
Constitution.

[It is evident that the drafters left the details
relating to these grounds to the National Assembly to spell out. But the
drafters could not have contemplated that members of the assembly would
individually have to determine what constitutes a serious violation of the law
or the Constitution and conduct on the part of the president which, in the
first place, amounts to misconduct and whether, in the second place, such
conduct may be characterised as serious misconduct. If this were to be the
position, then we would end up with divergent views on what is a serious
violation of the Constitution or the law and what amounts to serious misconduct
envisaged in the section.]

“And since the determination of these matters falls
within the exclusive jurisdiction of the Assembly, it and it alone is entitled
to determine them. This means that there must be an institutional
pre-determination of what a serious violation of the Constitution or the law
is. The same must apply to serious misconduct and inability to perform the
functions of the office. The Acting Speaker describes the first two grounds as
exhibiting wrong-doing on the part of the President. I could not agree more. This
is evident from the language of section 89(2) which stipulates that a President
removed from office on any of these two grounds may lose benefits. Once more,
it is left to the Assembly to determine circumstances under which the President
removed from office on one of those grounds may forfeit benefits. 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. A removal of the President where none of those grounds is
established would not be a removal contemplated in section 89(1). Equally,
a process for removal of the President where none of those grounds exists would
amount to a process not authorised by the section.”

Accordingly
the argument runs that, absent a clearly designated mechanism, the National
Assembly would not be able to remove the Public Protector. However, Section 194
of the Constitution which provides for the removal of the Public Protector is
worded differently to Section 89. It provides that she can only be removed on grounds
of misconduct, incapacity or incompetence by way of a finding to that effect by
a committee of the National Assembly and thereafter a two thirds majority of
the members of the National Assembly.

Understandably,
unlike the president, the Public Protector is subject to scrutiny by a
committee, being the justice portfolio committee to which she regularly
reports. In addition the grounds for removal of the Public Protector are
different from those that troubled the Constitutional Court in respect of the president.
For these reasons, it would appear that the justice committee could conduct the
necessary hearing. The charge would, at the very least, be misconduct and
incompetence based on the clear judgment of the highest court in the country.

As
is her legal right the Public Protector could approach the courts for relief,
but that alone should not justify the National Assembly from sitting passively,
thereby preventing this crucial office from being rebooted to effectively
perform its crucial mandate.

– Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.

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