Constitutional law expert explains the role of public protector

The Committee for Section 194 Enquiry into the removal of suspended advocate Busisiwe Mkhwebane from her position as public protector (PP) had its first expert witness on Tuesday give testimony on how the public protector must be a “fit and proper person”.

Constitutional law expert Hassen Ebrahim provided a presentation on day two of the hearings on the legislative and constitutional framework which underpins the office of the public protector.

According to Ebrahim, the public protector was an organ of state and may not assume any powers or functions not conferred on her, required a high standard of ethics and must use resources economically and effectively.

Ebrahim said the first important function of the public protector was to investigate any conduct in state affairs, or in the public administration in any sphere of government, which was alleged or suspected to be improper or to result in any impropriety or prejudice, to report on that conduct and to take appropriate remedial action.

“A fit and proper individual must demonstrate absolute personal integrity, scrupulous honesty, must always be reliable, must show good faith, must demonstrate proper knowledge of and regard for the law; must not misstate facts, conceal the truth or make unsubstantiated allegations,” he said.

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Ebrahim said at all times, the public protector must not put personal interests above the interests of the public and above those of the office.

While the inquiry could result in Mkhwebane facing an impeachment vote in the National Assembly, in regard to the removal process of a public protector, Ebrahim said, the bar was low for a public protector.

On Monday, Mkhwebane’s counsel, advocate Dali Mpofu, argued there was no separation between the office of the public protector and the incumbent. Ebrahim said while a judge can only be removed on the basis of gross misconduct, a PP can be removed on the basis of misconduct, incompetence or incapacity.

“Axiomatically, the public protector’s office is more important than any incumbent. The impact of certain types of conduct that shake its operations at the foundations may outlive the terms of office of a number of incumbents,” he said.

“You weaken [the office], you weaken our constitutional democracy. Its potency, its attractiveness to those it must serve, its effectiveness to deliver on the constitutional mandate, must be preserved for posterity.”

Ebrahim said the “removal rules” defined incompetence as something which should be measured against the duties of investigation, reporting, determining remedial action and management. Ebrahim said “incompetence” included the demonstrated and sustained “lack of knowledge to carry out his or her duties effectively or efficiently”.

These were the two bases being advanced for why Mkhwebane should be removed from office.

– lungas@citizen.co.za