Process to remove public protector must be fair, DA and ANC agree

The ANC and DA are singing from the same hymn sheet that the process to remove a head of a Chapter 9 institution, such as the public protector, needs to be fair.

Parliament’s rules committee wants to establish an independent advisory panel to evaluate evidence to take the “partisan sting” out of the process to remove a head of a Chapter Nine institution.

The committee met on Tuesday to start its work on drafting rules for such a process and agreed to refer it to a subcommittee.

Two weeks ago, the portfolio committee on justice and correctional services unanimously agreed to ask the rules committee to draft rules for the removal of the head of a Chapter 9 institution, before it considers removal proceedings against Busisiwe Mkhwebane.

DA chief whip John Steenhuisen had laid the initial complaint – the third time for his party – amid a slew of court findings against Mkhwebane.

While Section 194 of the Constitution provides for the removal of a public protector and other heads of Chapter 9 institutions, parliament does not currently have rules for the process to be followed.

Mkhwebane indicated earlier that she would challenge a process to remove her in court on this basis.

Process must ‘stand the test of time’

On Tuesday, Steenhuisen, who previously submitted draft rules to the committee, said a process to remove the head of a Chapter 9 institution should not be entered into lightly, particularly in the case of the public protector, who can often make rulings against members of the executive.

He said a “malevolent government” would then be able to remove a public protector who was doing their job.

Steenhuisen said he wanted a robust deliberative process to prevent the arbitrary use of a majority, and an “unimpeachable process” that couldn’t be overturned.

“We’ve got to be fair, and we’ve got to be seen to be fair,” he said. However, he emphasised the need for urgency, as “there is an issue with the current incumbent”.

ANC deputy chief whip Doris Dlakude said the ANC “would prefer a process that will stand the test of time”.

She proposed an independent panel – which could be made up of retired judges – to assess the evidence against the Chapter 9 head.

“If it is done that way, the process will be fair,” she said.

‘Partisan sting’

She said the committee did not meet to deal with a particular incumbent or individual.

Steenhuisen agreed that an independent panel would take “the partisan sting” out of the removal process.

Deputy speaker Lechesa Tsenoli said the committee’s process to draw up the rules must not move with the “speed of a village cow”.

“Parliament needs to be responsive,” he said.

ANC chief whip Pemmy Majodina said they were not discussing the “nitty-gritties of removal”, they were just putting a mechanism in place.

She also referred to Steenhuisen as “Mr T”, with Steenhuisen telling the smiling Majodina that he wasn’t sure where that came from, but hoped it was because he dotted the “i”s and crossed the “t”s.

National Assembly speaker Thandi Modise said the urgency with which they dealt with the matter must not come at the expense of thoroughness.

Draft rules

Steenhuisen’s proposed draft rules make provision for an advisory panel.

Such a panel is also provided for in the rules parliament adopted last year for the removal of the president in terms of Section 189 of the Constitution, the process commonly referred to as impeachment.

EFF MP Natasha Ntlangwini entered the committee room toward the end of the discussion and did not participate. The EFF has been a staunch supporter of Mkhwebane in recent months.

At the same meeting, the committee decided to refer the EFF MPs – who stormed Public Enterprises Minister Pravin Gordhan when he delivered his budget speech in July – to the Powers, Privileges and Immunities Committee.

Two of Mkhwebane’s recent reports, that caused controversy, made adverse findings against Gordhan, who has taken it on judicial review.

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