Removal of a public protector a 'double-edged sword', says Steenhuisen

10 September 2019 - 15:55 By Andisiwe Makinana
Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.
Image: Esa Alexander

An independent panel should be set up to assess evidence against the public protector, or any other Chapter 9 institution head, before proceedings to remove the person from office can be initiated.

This, MPs argued on Tuesday, would be the only fair way to handle the removal of the public protector — and heads of other Chapter 9 institutions — from office.

The establishment of an independent panel was one of the proposals made by both the ANC and the DA, as the National Assembly's rules committee kicked off a process to draft a new regulation which will provide for the removal of heads of Chapter 9 institutions.

“We would like to propose for the assessment of evidence to be done by an independent panel which, according to the constitution, can be a retired judge or three people with legal minds.

“From our side, we believe that if it's done that way, the process would be fair,” said ANC deputy chief whip Doris Dlakude.

MPs across party lines emphasised the importance of following a fair process.

“After the rules have been established, we would prefer to have a fair process that would stand the test of time”, Dlakude added.

She was also at pains to say that they were not dealing with the incumbent public protector, advocate Busisiwe Mkhwebane, or any specific individual. Rather, they were dealing with a process that would be binding for all Chapter 9 institution heads.

She said the ANC agreed that there were currently no rules about the process to remove a Chapter 9 institution head, and that the new rules should be established in the same way that the courts ordered parliament to do in regards to Section 89 of the constitution when it came to removing a president from office.

DA chief whip John Steenhuisen, who tabled his own proposed draft rule, emphasised the need for due process in the removal of a head of a Chapter 9 institution, particularly the public protector, saying it was a process that should not be entered into lightly.

This was particularly because of the history of the public protector's office in the country and the possibility that, from time to time, that office would make rulings and findings whose consequences may have serious impact on the government and could well be negative for the government.

“So, it shouldn't be easy to simply by a majority vote remove a public protector from office because it is a double-edged sword. A malevolent government could use the procedure to remove a public protector who is actually doing the job in terms of the constitution,” he warned.

But equally so, he said, the house must have, as the constitution envisages, a process to determine when the head of a Chapter 9 institution behaves in a manner that constitutes one of the grounds for removal in terms of the constitution. This would allow the implicated person to answer to the charges put to them and for a full and robust deliberation. This process should have a number of safeguards and checks and balances to prevent the arbitrary use of the majority to simply remove somebody because one may not like their reports.

Steenhuisen said parliament must be fair and must be seen to be fair while following a process that would be difficult to interdict, indict or overturn.

He called on parliament to move with the necessary speed, saying he would be concerned if the matter was not concluded in three to six months.

Steenhuisen said criticism of parliament for not having a process already in place was unfair and misplaced, because rules were living documents that evolved over time.

Speaker Thandi Modise, who was chairing the meeting, agreed with Steenhuisen on the unfair criticism of parliament, saying that when the drafters of the constitution drafted Chapter 9, they were looking at honour, service, honesty and all the good traits of a good leader.

“We were putting in the men and women of South Africa who were going to serve. The fact that it took us almost 25 years before we had to look at mechanisms to remove also tells you just how positive South Africa was about its capacity and its stance on good leadership,” said Modise.

She suggested that parliament should consider having a mechanism to test the competency of future heads of Chapter 9 institutions when they were being hired, and not only at the end when they are being removed.

The rules committee resolved to refer the drafting of the procedure to be followed to a sub-committee on the review of the rules of the assembly to draft the new rule.