Busisiwe Mkhwebane Ramaphosa EFF

220719w- News -Johannesburg- Public Protector Busisiwe Mkhwebane at the constituional court,the highest court in the land has ruled that Mkhwebane put falsehoods, her investigation was flawed in the Bank/korp Absa investigation – Photo: Felix Dlangamandla / Netwerk24 / Christiaan du Plessis

It’s ready, set, go for process to remove Public Protector Mkhwebane

At this stage, there simply does not exist a way to get rid of the Public Protector…

Busisiwe Mkhwebane Ramaphosa EFF

220719w- News -Johannesburg- Public Protector Busisiwe Mkhwebane at the constituional court,the highest court in the land has ruled that Mkhwebane put falsehoods, her investigation was flawed in the Bank/korp Absa investigation – Photo: Felix Dlangamandla / Netwerk24 / Christiaan du Plessis

If all goes according to plan, Parliament will start working on a process to remove those heading Section 9 institutions in South Africa, but who do not meet expectations. That could set a way to get rid of Public Protector Busisiwe Mkhwebane, should it be the wish of the majority in the National Assembly.

At this stage, there simply does not exist a way to get rid of the Public Protector should he/she not make the grade. It is a current shortcoming of our ever evolving constitutional order. What Parliament has now embarked upon is to fix that procedural shortcoming.

Parliament decides when and how to remove a Public Protector

Hence, this week the parliamentary rules committee will meet to discuss a new draft rule crafted by DA chief whip John Steenhuisen. It is quite a detailed piece of work, but at its core it lists three reasons why Parliament can decide to remove a Public Protector. These are incapacity (if the Public Protector becomes too ill to do the job), incompetence or misconduct.

The first step to get rid of the Public Protector under the proposed new draft rules is that an enabling motion must be passed by majority vote in the National Assembly, after which an investigation must be undertaken by a multiparty committee of MPs.

The proposal currently is that half of the MPs on the committee must be opposition MPs, which is a part of the proposal which is very unlikely to survive, given the South African parliamentary principle of proportionality.

The multiparty committee has the option of being assisted and informed by an independent expert panel which may for instance include retired judges.

Simple majority or two-thirds majority?

Once the multiparty committee has made its recommendation whether to retain or remove the Public Protector, the National Assembly votes on the recommendation. It is not explicitly stated in the draft rule whether a simple majority or a two-thirds majority is required to remove the Public Protector, which, if the draft rule were to be adopted as it stands, would mean only a simple majority would be adopted.

It is expected that the parliamentary rules committee will eventually largely agree to the draft rule, possibly with some changes, most likely to honour the principle of proportionality and perhaps to set a higher bar for the majority required to remove the Public Protector.

If and when such a rule is adopted, it is no given that it will be used to remove Busisiwe Mkhwebane, the current incumbent. She has the firm support of the EFF and the ANC may well be loath to expose and test the dividing lines on her future fate within the governing party.

But once a procedure is established by which Parliament can act, a shortcoming in our constitutional setup would have been addressed and the efforts to remove her can begin.