ANC MPs appeared to be closing ranks around Public Protector Busisiwe Mkhwebane and against the Democratic Alliance’s call for Parliament to initiate a process for her early removal from office.
But the opposition has warned that a failure to hold an inquiry into Mkhwebane’s fitness to hold office would be a dereliction of duty by Parliament which would haunt the institution‚ as was the case with the Nkandla matter.
DA chief whip John Steenhuisen pleaded with the National Assembly’s justice and correctional services committee‚ saying he believed that sufficient grounds exist to‚ at the very least‚ warrant an inquiry into Mkhwebane’s fitness to hold office.
“It is my opinion that this committee‚ as the custodians of the oversight and accountability role entrusted by the Constitution in this case‚ should discharge that role by allowing for an inquiry to assess the fitness of the current Public protector to continue to hold office‚” said Steenhuisen.
“Failure to do so will be a breach of the responsibility entrusted to the National Assembly to exercise oversight and hold the Public Protector accountable. If the committee chooses not to do so and the Public Protector continues with her cavalier approach to the most basic fundamentals of the law‚ procedure‚ and this parliament’s role then the responsibility for these must shift from her office and to this parliament‚” he added.
Steenhuisen lodged a complaint with National Assembly Speaker Baleka Mbete last year requesting that the National Assembly initiate procedures to remove Mkhwebane from office. Mbete referred the matter to the justice and correctional services committee to process the complaint‚ but after much dilly-dallying the ANC complement in the committee outvoted the opposition in rejecting the call to probe Mkhwebane’s fitness.
But as courts continued to find against her‚ Steenhuisen reiterated his call for her removal and the committee heard his oral submission on Wednesday.
He argued that Mkhwebane was incompetent and cited a number of court rulings where judges had found among other things that Mkhwebane had grossly over-reached her powers‚ had shown poor understanding of the law and of her own powers and in another case was found to have sacrificed her independence and impartiality.
ANC members indicated that Mkhwebane was appealing against sections of certain court rulings and suggested that the committee may have to wait for the appeal processes to be finalised.
They also‚ one after the other‚ argued that in the very same courts‚ judges had given judgments which‚ when taken on review‚ get struck off.
“Would you say they are incompetent?” asked ANC MP Loyiso Mpumlwana‚ who also suggested that Steenhuisen may be reacting to “an inflammatory statement” issued by Mkhwebane in which she labelled the DA’s criticism of her as unpatriotic.
He asked: “Is it really a big sin; does it really mean she is changing the constitution?”
This was in reference to Mkhwebane’s recommendation to Parliament to amend the constitution. She was slapped hard by the courts for overreaching on this matter. ANC MPs also suggested the fact that the public protector’s remedial action could be challenged in court was evidence that the constitution and its drafters foresaw possible differences in the interpretation of the same constitution.
Committee chairperson Mathole Motshekga had set the tone when he told Steenhuisen that there were South Africans – some of them leaders of political parties – who have accused the judiciary of judicial overreach.
“Would we hold an inquiry into the fitness or otherwise of the judges that are accused of judicial overreach?” he asked.
“The constitution is open to many interpretations; even great legal minds differ on the interpretation of the provisions of the constitution. Are we saying that heads of Chapter Nine institutions who may interpret a provision of the constitution different from how you and I interpret it are by the virtue of their interpretations disqualified from holding office?”
Steenhuisen argued that the comparison of judicial overreach and Chapter 9 institutions was like “comparing fish and fowl”.
Chapter 8 of the constitution deals specifically with the courts and administration of justice while Chapter 9 is a stand alone chapter that creates institutions that are meant to partner with Parliament in protecting and entrenching democracy and are given specific tasks.
“If there are errors that judges make‚ there is a specific procedure that is laid out for them. However I think in the case of Chapter 9 institutions ‚ there is a very specific provision about how they are held accountable and what procedure should be followed‚” he said.
While he accepted that people make mistakes‚ Steenhuisen said a head of a chapter nine institution is expected at the very least to have a grasp of the basic concept of where their mandate starts and stops and where they fit in in terms of the constitution.
“I don’t say they must be disqualified‚ I certainly think they must be held accountable and the accountability mechanism that is used then is surely an inquiry into how that person arrived at that decision‚ why it was done and why they overlooked a very basic provision‚” he said.
The African Christian Democratic Party’s Steve Swart warned that a court had found the public protector had acted disingenuously‚ meaning she has misled and has not spoken the truth‚ which is a serious finding. “This is more serious‚ you’ve got a finding of acting disingenuously by a high court judge and it was upheld on appeal by a full bench.”
Swart added the fact that the court made a punitive cost order‚ which is unusual‚ makes a compelling case for an inquiry. “If we do not agree‚ we would seriously be faulting our oversight responsibilities that have already been pointed out by the Constitutional Court in other matters‚ like the Nkandla matter‚” he said.
The committee will invite Mkhwebane to defend herself but no date has been set for this.