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Parliament to decide on inquiry into Mkhwebane's fitness to hold office before end of March

Andisiwe Makinana Political correspondent
Public protector Busisiwe Mkhwebane in the dock of the Pretoria regional court on January 21. File photo.
Public protector Busisiwe Mkhwebane in the dock of the Pretoria regional court on January 21. File photo.
Image: Alaister Russell/The Sunday Times

The National Assembly will decide before the end of March whether to proceed with an inquiry into public protector Busisiwe Mkhwebane's fitness to hold office.

According to the rules regulating the removal of heads of Chapter 9 institutions, after receiving the report of an independent panel, the house has to decide whether to hold an inquiry or not.

Earlier this week, an independent panel appointed to assess the merits of a motion to have Mkhwebane removed from office, recommended parliament institute impeachment proceedings against her. The panel, led by retired Constitutional Court judge Bess Nkabinde, said it had found substantial information that constitutes prima facie evidence of incompetence and misconduct against Mkhwebane.

In terms of the process, the report of the panel has to be placed before the house for consideration.

A sitting of the National Assembly will then decide whether it agrees with the report, and whether an inquiry by a parliamentary committee should be held or not.

National Assembly speaker Thandi Modise was clearly in favour of the inquiry going ahead.

“It would be a very sad day though, I must say it upfront, that with the report that all of you party leaders have in our hands, we say we don't want a committee stage because then we would really be putting democracy in this country to shame,” said Modise, who has clashed with Mkhwebane on several occasions since she became speaker in May 2019.

“I think we owe it to the country, to the institution, to the individuals involved, to go through a process which in the end all of us can live with. For me that is very important.”

Modise said whatever parliament does, it has to be careful what message it is sending out.

“We don't want to be clumsy about this, we don't want to be overhasty, we don't want to drag our feet. We want to be fair and we want to be punctual, because also the longer we take, the more we actually subject the image of whatever structure to a process which is unfair.

“Let us agree that we take this report to the house, and the house must then proceed and tell us if they want this report to go to the committee stage or not.”

ANC chief whip Pemmy Majodina proposed that the report be tabled “for noting” on March 16 before parliament breaks for the Easter holidays.

All parties represented in the assembly's programme committee, except the EFF, agreed with Majodina's proposed date.

The EFF said there was no need to rush the process. EFF MP Hlengiwe Mkhaliphi encouraged MPs to familiarise themselves with the rules around the issue before moving to consider the report.

For DA chief whip Natasha Mazzone, parliament has to intervene with speed because of the importance of Chapter 9 institutions. Mazzone, who tabled the motion for parliament to remove Mkhwebane, also proposed that if parliament proceeds with an inquiry, it should hire a senior counsel to lead its evidence.

Secretary to the National Assembly Masibulele Xaso told MPs that ideally, on the day the report is placed before the National Assembly for consideration, MPs should only confine their inputs to process matters and not the merits of whether Mkhwebane is capable of being a public protector. This would be done during the inquiry, if an inquiry goes ahead.

The house can either agree to a matter or note the matter, which means nothing happens to it, or reject the matter, said Xaso.

According to the National Assembly rules on the removal of heads of Chapter 9 institutions:

  • Once the independent panel has made its recommendations, the speaker must schedule the recommendations for consideration by the assembly, with due urgency, given the programme of the assembly.

  • In the event the assembly resolves that a section 194 inquiry be proceeded with, the matter must be referred to a committee for a formal inquiry.

  • The speaker must inform the president of any action or decision emanating from the recommendations.

  • Once the committee has been established, it must proceed to conduct an inquiry and establish the veracity of the charges and report back to the assembly.

  • The committee must ensure that the inquiry is conducted in a reasonable and procedurally fair manner, within a reasonable time frame.

  • The committee must afford the holder of a public office the right to be heard in his or her own defence and to be assisted by a legal practitioner or other expert of his or her choice, provided that the legal practitioner or other expert may not participate in the committee.

  • For the purposes of performing its functions, the committee has all the powers applicable to parliamentary committees as provided for in the constitution, applicable law and the rules.

  • Once the committee has concluded its work, it has to draft a report with findings and recommendations, including the reasons for such findings and recommendations for consideration and debate by the assembly, with due urgency, given the programme of the assembly.

  • If the report recommends that the holder of a public office be removed from office, the question has to be put to the house for a vote and if the required majority of the members support the question, the assembly must convey the decision to the president.

  • The public protector can be removed by at least two-thirds of the members of the National Assembly.


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