Parliament needs to take control of impeachment inquiry

Parliament’s section 194 committee, which is conducting an inquiry into suspended public protector Busisiwe Mkhwebane’s fitness to hold office, paused its proceedings last Wednesday after seven days of hearings. It is scheduled to resume on July 27, a day after Mkhwebane’s court challenge to her suspension by President Cyril Ramaphosa is due to be heard.

After years of litigation and delays (the DA’s motion for her removal was tabled in February 2020), the process to remove the public protector appears to be well under way. We must disclose at the outset that the Council for the Advancement of the SA Constitution was involved in some of the legal challenges to the impeachment process as a friend of the court, both in the high court and the Constitutional Court. It is then perhaps opportune at this point to reflect on the committee’s proceedings so far.

Mkhwebane faces a motion for her removal from office on the grounds of incompetence and/or misconduct. The charges relate to her conduct when carrying out investigations and when defending reviews of her reports or remedial action in court. Where courts have expressed reservations about her competence because of her conduct, evidence will be led either to exculpate her or to confirm the charge of incompetence. In relation to the charge of misconduct, the same applies to court findings that her conduct was improper or irregular.

On the first day of hearings, after the evidence leaders had set the scene for the work of the committee, Mkhwebane’s legal representative, Dali Mpofu, aired a laundry list of grievances about the process and everything else that led up to it, most of which was irrelevant to the issue the committee must consider. Among Mpofu’s complaints was the evidence leaders’ characterisation of the process as a removal process. Mpofu argued that the committee’s inquiry could not be regarded as a removal process but merely a preliminary inquiry to make an “institutional predetermination” about Mkhwebane’s fitness to hold office.

This contention seems to have been pegged specifically on another grievance about Mkhwebane’s suspension, which Mpofu argued was unlawful. Here, Mpofu seems to suggest that because the president could only suspend Mkhwebane once a removal process against her had started, if the current process is deemed not to be a removal process, the president’s power could not have been triggered and the suspension was unlawful.

The difficulty for Mkhwebane is that section 194 is quite clear that a removal from office follows a finding by a committee of the National Assembly of the existence of a removal ground and a resolution of the National Assembly that the person be removed from office. The antecedent process of how the establishment of the committee is triggered is left up to the National Assembly, which has adopted rules to that effect.

It is in terms of those rules that DA MP Natasha Mazzone first tabled a motion in the house, and the independent panel that found that a preliminary case for Mkhwebane’s removal was present was appointed. Once the National Assembly had resolved to establish the committee, she became the subject of removal proceedings, and the president was empowered to suspend her.

Another complaint related to the evidence leaders’ correct statement that it was not the job of the committee to second-guess the factual and legal findings of the courts in the numerous judgments that were submitted as evidence in support of the removal motion. Mpofu seemed to suggest that the committee was free to make findings that were contrary to those on record, completely unmoored from the decisions of the courts even in relation to Mkhwebane’s conduct in the process of litigation.

This could not be further from the truth. The committee, like all of us, is bound by the findings of the courts in the various cases. Judgments, especially of the Constitutional Court, are final, and no-one may second-guess them regardless of any misgivings about their correctness.

The task of the committee is, among other things, to “establish the veracity of the charges”. That is to say, the role of the inquiry is to determine whether the conduct of the public protector, as recorded in the judgments that have been placed before the committee, meets the standard of misconduct or incompetence or both, and in turn to recommend her removal from office by the National Assembly on those grounds or to recommend that the motion not be agreed to.

It is not the committee’s role to reopen and re-litigate matters that have been finally settled. For all intents and purposes, the courts’ findings are determinative, and the committee is to operate on the assumption that they are a true and accurate reflection of what transpired. As the evidence leaders stressed, the public protector had numerous opportunities to place her versions before the courts, and if those versions were not accepted, the committee cannot revisit them, let alone overrule them.

Lost ground

The conduct of the hearings itself is of concern. When witnesses have been cross-examined by Mpofu, he has often sought to ridicule them in an effort to attack the credibility of their testimony, regardless of how well-trodden the facts in question are. At one point he even went as far as insinuating that former SA Revenue Service executive Johann van Loggerenberg was not of sound mind. All of this undermines the committee’s process, which is meant to be inquisitorial and not adversarial — it is aimed at establishing whether misconduct or incompetence are borne out by the evidence before it.

It is ironic that Mkhwebane, who rightfully resisted an attempt by the Institute for Accountability in Southern Africa to have her declared unfit for office by the high court by arguing that such a declaration would be a usurpation of parliament’s power to remove her in terms of section 194, now seeks to turn that very parliamentary process into some quasi-judicial process — with all of the idiosyncrasies of a trial to boot.

While Mkhwebane is entitled to legal representation, as confirmed by the Constitutional Court in its judgment, the inquiry that serves before the removal committee is not a trial and should not be conducted as one. The committee has, in the hearings, ceded far too much ground to her legal representatives in the conduct of the proceedings and this poses a risk that the committee’s oversight role will not be fulfilled.

Parliament must take charge of the process and ensure it discharges its constitutional duty to hold the public protector accountable and is not distracted by the legal theatrics now on display.

• Naidoo is executive secretary, and Mafora research officer, at the Council for the Advancement of the SA Constitution.