Public Protector Busisiwe Mkhwebane has relied on the Constitutional Court judgment in EFF and Others v Speaker of the National Assembly and Another to force the National Assembly to adopt specific rules to deal with her possible removal.

‘This is not a bad thing,’ says constitutional law expert Professor Pierre de Vos, ‘as new rules will provide for an independent and impartial assessment of whether (her) removal is justified.’

In an analysis on his Constitutionally Speaking blog, De Vos notes that while that judgment involved the impeachment of a President in terms of section 89(1) of the Constitution, section 194(1) provides for the Public Protector’s removal from office on grounds of misconduct, incapacity or incompetence. De Vos notes while the wording of the two sections is similar, they are not identical.

‘Section 89 provides for the impeachment of a President but imposes more stringent requirements for removal than section 194 does. While a President can only be removed for a serious violation of the Constitution or the law or serious misconduct, the Public Protector can be removed for any misconduct and any kind of incompetence.’

Despite these differences, in both cases the National Assembly must decide on removal, but only after it had determined whether one or more of the grounds for impeachment exists. De Vos says this determination is based on a factual question and not a political one.

He adds it would not usually be appropriate for members of an ad hoc committee of the National Assembly (voting along party lines) to determine whether any of these grounds exist.

Rules must now be drafted to regulate the process for the removal of the Public Protector, which may require an impartial process to be followed. When drafting these new rules to give effect to the principle established by the Constitutional Court in the above impeachment case, the rules committee will be able to draw on the rules regulating the impeachment of a President.

These rules were adopted following the judgment.

They require the Speaker to refer any impeachment motion and any supporting evidence to a panel of three independent legal experts. The panel must assess if there is sufficient evidence for Parliament to proceed with a section 89 inquiry.

If it decides to do so, the matter must be referred to an impeachment committee, which in turn must make a recommendation to the National Assembly, which must then vote on the issue.

De Vos assumes the National Assembly will adopt a similar procedure for the removal of the Public Protector, which has an important benefit. When MPs are called upon to determine whether grounds for impeachment exist, they will vote along party lines for or against the removal – regardless of the facts.

However, the rules of impeachment forces MPs to engage with the relevant facts as confirmed by an independent panel of legal experts.

De Vos notes further that the rules committee has not yet considered what rules to adopt to regulate the removal of the Public Protector.

Thus, the process to remove Mkhwebane from office will have to wait until such time as this has been completed.

Full analysis on the Constitutionally Speaking blog

Economic Freedom Fighters and Others v Speaker of the National Assembly and Another