Fri, 02 Oct 2020

Public Protector removal: What happens next?

26 Jan 2020, 17:40 GMT+10

National Assembly Speaker Thandi Modise gave the green light on Friday for removal proceedings against Public Protector Busisiwe Mkhwebane to proceed.

This after the DA put in such a request, with an accompanying substantive motion, to Modise on December 6, three days after the National Assembly adopted rules for the removal of a head of a Chapter 9 institution, such as the Public Protector.

This was the first step in the removal proceedings.

The second step was for Modise, as speaker, to ensure that the DA's motion complies with the requirements. These are:

The motion must be limited to a clearly formulated and substantiated charge, which must prima facie show that the person who committed misconduct, is incapacitated or incompetent;the charge must relate to an action performed or conduct ascribed to the person in question (Mkhwebane in this case); andall evidence relied upon for the motion must be attached to the motion, which must be consistent with the Constitution, laws and rules.

This is where we are now in the process, as Modise has found this to be in order.

So what happens next?

1. Referral of motion to an independent panel

The speaker must appoint an independent panel which will determine whether there is a viable case to be made for the removal of the person in question.

This panel must consist of three "fit and proper South African citizens", which may include a judge and who collectively possesses the legal and other competencies and experience to conduct such an assessment.

The speaker may only appoint the panel after all parties represented in the National Assembly have had a chance to put forward nominees and after the speaker has given due consideration to all of those nominated. Modise has already set this in motion, by inviting all parties in Parliament to nominate candidates for the panel by February 7, after which she will appoint it.

If a judge is appointed to the panel, the speaker must consult with the chief justice.

The speaker must appoint one of the panelists as a chairperson.

The speaker must refer the motion and any supporting documents to the panel appointed and inform the National Assembly and president without delay.

The panel must be independent and subject only to the Constitution, law and rules and it must act impartially and without fear, favour or prejudice.

2. The panel evaluates motion and reports back to the National Assembly

The panel must, within 30 days of its appointment, conduct and finalise a preliminary assessment to determine whether there is prima facie evidence to show that the person committed misconduct, is incapacitated or incompetent.

The panel may afford any member an opportunity to place relevant written or recorded information before it.

It must, without delay provide the head of the Chapter 9 institution with copies of all available information and with a reasonable opportunity to respond in writing to the allegations against her or him.

The panel may not hold oral hearings and must limit itself to the relevant written and recorded information placed before it by the members or the Chapter 9 institution.

In its report, the panel must include recommendations and the reasons for the recommendations, as well as any minority view of any panelist.

Once the panel has made its recommendations, the speaker must schedule the recommendations for consideration by the National Assembly, with due urgency.

3. The National Assembly considers the motion

4. Inquiry to be held if the National Assembly adopts the motion

If the National Assembly resolves that an inquiry must proceed, it must be referred to a committee and the speaker must inform the president.

The National Assembly will establish a committee to deal with such inquiries, with the speaker to determine how many members will serve on it. The members will be appointed as and when necessary.

The committee must conduct an inquiry and establish the veracity of the charges, and report to the National Assembly. The committee must ensure that the inquiry is conducted in a reasonable and procedurally fair manner, within a reasonable time frame.

The officeholder must be afforded an opportunity to be heard by the committee in his or her defence. He or she could be assisted by a legal practitioner, but the legal practitioner may not participate in the committee.

The committee has all the powers applicable to parliamentary committees. This means it would be able to subpoena potential witnesses.

The question before the committee is decided when a quorum is present and a majority is in agreement. The committee must report all views, including minority views.

5. National Assembly considers committee's report

The committee's report must contain findings and recommendations, including the reasons for these findings and recommendations.

The report must be scheduled for consideration and debated in the National Assembly with due urgency.

If the report recommends that the Chapter 9 institution head should be removed from office, the question must be put to the National Assembly directly for a vote.

In the case of the Public Protector, a two-thirds majority must support the motion to remove the incumbent.

6. Removal by the president

If the required majority of the members supports the question, the National Assembly must inform the president.

In terms of Section 194(3)(b) of the Constitution, the president must then remove the Public Protector.

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