Acting speaker to recommend suspending parliament’s impeachment process against Mkhwebane

19 August 2021 - 13:43
By Franny Rabkin
Public protector Busisiwe Mkhwebane. File photo.
Image: Moeletsi Mabe Public protector Busisiwe Mkhwebane. File photo.

Acting speaker Lechesa Tsenoli will recommend suspending parliament’s impeachment process against public protector Busisiwe Mkhwebane — pending an urgent appeal application to the Constitutional Court.

The acting speaker has filed an application at the highest court to appeal against the high court decision that found aspects of parliament’s impeachment rules for the heads of chapter nine institutions unconstitutional.

The judgment invalidated steps that had already been taken in the process for Mkhwebane’s impeachment — in particular the preliminary assessment by an independent panel chaired by retired Constitutional Court Justice Bess Nkabinde. The panel found that Mkhwebane had a case to answer for misconduct and incompetence.

In his application, Tsenoli said he had decided to recommend a suspension of the process because if the high court judgment was confirmed on appeal, it would invalidate “everything ... from the date when Justice Nkabinde was appointed to the independent panel”.

Since then, the panel had delivered its report and a committee had been established to conduct an inquiry.

When Mkhwebane challenged the constitutionality of the rules, she did so on 12 separate grounds. The majority of these were dismissed, but two were upheld. First, the high court agreed that it was unconstitutional — a breach of the separation of powers, it said — that a judge could be part of the independent panel that made a preliminary assessment of whether there were prima facie grounds for impeachment.

Second, the high court found it was unconstitutional that when the parliamentary impeachment committee conducts its inquiry, the public protector’s lawyer (or lawyer for any other head of a chapter nine institution) may not participate. 

Tsenoli said the impeachment committee was on the verge of beginning proceedings and if the high court order was confirmed, it would invalidate these proceedings also.

However, he said the high court had got it wrong on both these findings. He said it was rational to exclude the public protector’s lawyers from participating in the committee proceedings. The test for legal rationality was not whether the National Assembly “could have included different mechanisms to the ones it did, but whether the new rules contain a rational scheme for the conduct of proceedings”.

While the judgment had compared the chapter nine head impeachment rules with those already in place for impeaching a president, Tsenoli said they were not the same. Section 194 of the constitution prescribed “very serious consequences” for the removal of a president, like the loss of benefits and a prohibition on the occupation of any public office in the future. This was a rational foundation for giving full participation of lawyers when the president was impeached, as opposed to the head of a chapter nine institution.

The high court also reasoned wrongly about judges being able to be appointed to the independent panel, said Tsenoli. He said SA did not have a complete separation of powers between the executive, legislature and judiciary — as acknowledged by the high court’s judgment.

The job of the independent panel was “a function closely connected with the core function of the judiciary” and in terms of the rules the speaker had to consult the chief justice when appointing a judge to the panel to protect judicial independence.

“By refusing his/her consent, the chief justice can avoid a situation where, in the circumstances of a particular case, the appointment of a judge nominated by a particular political party may give rise to an incorrect perception that the judge is aligned with the party in question,” said Tsenoli.

The acting speaker has asked that if the ConCourt agrees that there should be a judge on the independent panel, its order should be forward looking only — so that it does not invalidate what has been done so far in the process relating to Mkhwebane.

He has also applied for conditional leave to appeal to the Supreme Court of Appeal in the event that the Constitutional Court rejects the application.