Home South African Ten civil society bodies ask Parliament to oust Public Protector

Ten civil society bodies ask Parliament to oust Public Protector

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As many as 10 civil society organisations have requested Parliament to remove Busisiwe Mkhwebane as the public protector.

Advocate Busisiwe Mkhwebane. File picture: Bongani Shilubane/African News Agency (ANA).

Johannesburg – As many as 10 civil society organisations have requested the Portfolio Committee on Justice and Correctional Services in Parliament to remove Busisiwe Mkhwebane as the public protector because of recent adverse findings against her by the courts.

Active Citizen’s Movement KZN, the Ahmed Kathrada Foundation, Council for the Advancement of the South African Constitution, Corruption Watch, Freedom Under Law, the Helen Suzman Foundation, Johannesburg Against Injustice, Right2Know, Women and Democracy Initiative, and the Dullah Omar Institute UWC, have made a joint written submission asking the potfolio committee to act.

“We are making this submission as a result of several recent court judgments on the activities of the Public Protector, Ms Busisiwe Mkhwebane, which have demonstrated, beyond any doubt, that she is unfit for office and unable to fulfill the office’s defined functions in a lawful manner,” said the civil society organisations in their submission to Parliament on Tuesday.

“If she is not removed from office, we are gravely concerned at the potential further damage that will be inflicted on South Africa.

“As a result, we are convinced that she has to be removed from office and that Parliament must take the necessary measures that are laid down in the Constitution for such a step.”

The submission sets out the grounds for the conviction of the organisations in this regard, as well as a proposal for the process to be followed by the Portfolio Committee on Justice and Correctional Services.

Grounds for the removal of the public protector, as specified in the constitution, include: misconduct, incapacity or incompetence;  a finding to that effect by a committee of the National Assembly; and adoption by the Assembly of a resolution calling for that person’s removal from office, which must be adopted with a two-thirds majority in the National Assembly.

The grouping argues that from a series of court judgements, it cannot be denied that the conduct of the Public Protector has demonstrated clear evidence of misconduct, incapacity or incompetence. 

The civil society bodies, in their submission, said an example of Mkhwebane’s poor conduct can be found in the matter of the Public Protector v South African Reserve Bank, which they said suffices to justify her removal from the position of public protector. 

The court found that she had misconducted herself to such an extent that she must pay 15% of the costs on a punitive scale in her personal capacity. Mkhwebane then unsuccessfully appealed against the personal costs order to the Constitutional Court. 

“It must be emphasised that the courts are in principle very reticent about making public officials personally liable for legal costs arising of action taken in an official capacity,” said the civil society bodies in their submission. 

Apart from the costs orders in the Reserve Bank and Estina cases, the civil society bodies said in their joint submission that “we are only aware of two other cases in which such an order was made.

“Firstly, in a scathing judgment, the majority of the Constitutional Court found that it had no reason to interfere with the high court’s ruling that she had acted in bad faith and in a grossly unreasonable manner. 

“The high court had found that the public protector had been dishonest, had misrepresented to court what material she had relied on, had failed to disclose meetings with the Presidency and other parties, had failed to disclose what was discussed at these meetings (and even contradicted herself in attempted explanations) and was reasonably suspected of bias.”

The Constitutional Court further found that “the public protector had acted in bad faith; did not fully understand her constitutional duty to be impartial and perform her functions without fear, favour or prejudice”. 

Mkhwebane has threatened to go to court if Parliament attempts to remove her from her job.

Meanwhile, the African National Congress (ANC) Study Group on Justice and Correctional Services welcomed the decision taken by Parliaments Portfolio (PC) Committee on Justice and Correctional Services, to refer the removal of Mkhwebane from the office of the Public Protector (PP), to Parliaments Rules Committee.

According to  ANC Study Group on Justice and Correctional Service Whip, Comrade Hishaam Mohamed, section 194(1) of the constitution currently provides for the removal of the Public-Protector on the grounds of misconduct, incapacity or incompetence. “The constitution also states that should a committee in the National Assembly find such an adverse finding against the PP, then the incumbent would be removed from the Chapter Nine Institution,” Mohamed said.

 

However, Mohamed said that despite this provision, the constitution does not explicitly state the mechanism that should be employed to remove an individual from the Office of the Public Protector from office. “Therefore, it is with this in mind that parliament’s rules committee has been tasked with drafting a set of rules, that will dictate what procedure should be followed when removing the Public Protector, or the head of any other Chapter Nine Institution from office.

 

“As a Chapter Nine Institution, the Office of the Public Protector is a corner stone of our democracy, and plays a crucial role in keeping members of the executive accountable. We as the ANC Study Group on Justice and Correctional will ensure that this process is fair, transparent and objective, in line with values and beliefs of South Africa’s constitution.”

 

African News Agency (ANA)