The National Assembly's vote on Tuesday on the Public Protector's fitness to hold office will define the respect of our parliamentarians for the Constitution and the rule of law, writes Omphemetse S Sibanda.
There is a saying fiat justitia, ruat caelum, which translated in simple English means "Let justice be done, though the heavens fall".
I found this maxim appropriate to address briefly the pending vote of the National Assembly that will clear the path to commence proceedings to determine substantively the fitness of Advocate Busisiwe Mkhwebane to hold the Office of the Public Protector – and the letter written to the Speaker of Parliament Thandi Modise that is aptly titled "ATM cautions against flouting of Rule 89 by Parliament" by African Transformation Movement (ATM) president Vuyo Zungula.
In the letter, Zungula states:
In the main, the ATM is arguing that the matter is sub judice and it is improper, or rather it is an abrogation of the jurisdiction of the courts, for the National Assembly to entertain it while before the courts.
"Once again, the ATM expresses confidence in adv Mkhwebane and her office and calls on all those in high offices not to abuse their offices and state resources to drive narrow political and fundamentally corrupt agendas," the letter further states.
I will not say much about the sub judice rule here for reasons that politicians always have recourse to it when it suits them and abandons it when it does not.
"Sub judice" is a Latin term which literally means "under judgment", and handling of the impeachment proceedings by the National Assembly will not jeopardise whatever court action is related to this review. The vote will in no way undermine the processes of the courts.
What I can say is that the nature and application of this rule is not as clear as water. Also, in this case, it may be used by the ATM as a tool of political convenience rather than a strict legal rule or duty or in support of the rule of law.
Independence
I must hasten to point out to the ATM that Chief Justice Mogoeng Mogoeng once said in his judgment in Economic Freedom Fighters and Others v Speaker of the National Assembly and Another [207] ZACC 47 (CC) that the National Assembly "must be left to enjoy its constitutionally guaranteed functional independence to determine its own procedures or processes".
My clear reaction to the ATM letter was simply why not let justice be done through the National Assembly process, even if it means ultimately the heavens of fractured political parties such as the ANC will fall as a result of the vote. But I was too ambitious and forgot that we live in a polarised political environment.
"When you live in a polarised political environment, people tend to see everything in those terms…," US Chief Justice John Roberts said in 2019.
This quote, which was more about the US Supreme Court becoming politicised, has relevance for a South African audience. It may also be of particular importance for members of our National Assembly who will be voting on Tuesday on steps to move forward the process to impeach Public Protector advocate Mkhwebane.
What attracted my attention to the ATM's letter is its commitment to do whatever is necessary for this matter "to ensure the rule of law".
Political interests
The rule of law also requires that the basic constitutional precepts of executive oversight and accountability are functioning.
Interestingly, parliamentarians tend to devote little attention to the execution of their duties and respect for the rule of law unless if it serves their political interests.
These expendable individuals and political parties have forgotten the meaning of the requirement for them to be accountable to the Constitution and the country. Profound is the reported statements by Thandi Modise that "it would be a very sad day… that with the report that all of you party leaders have in our hands, we say we don't want a committee stage, because then we would really be putting democracy in this country to shame".
Unfortunately, Modise herself is under attack for what is deemed by others as the wrongful handling of the process.
The ATM and similar positions aside, I had a glimmer of hope for rationality and common sense after reports that some members of the ANC rejected calls to vote along party lines. Further reports are that the ANC caucus in Parliament has also agreed that it will support the process to set up an inquiry on the possible removal of Mkhwebane.
It remains to be seen whether ANC members in the National Assembly will indeed be whipped into respecting an apparently sensible decision from the ANC. However, one should not be too hopeful that members of our Parliament from both the ANC and the opposition will be guided by what is the right thing to do – allowing the proper unfolding of the process that on the flipside may clear Mkhwebane.
As indicated, the ATM has already signalled its intention to attack the process as unlawful and involving considerations of issues that are sub judice.
It is also not inconceivable that ANC members who feel constrained by the caucus decision may mount an indirect attack on the process and try to derail it or delay it for some time by lodging a motion against the way the National Assembly speaker handled the process.
Defence of Mkhwebane
The EFF, among others, has already vowed to defend Mkhwebane all the way.
In the EFF's logic, its vote against the process to remove the current Public Protector will be a vote to protect the Office of the Public Protector, and not an effort to protect the Public Protector as an individual.
Interestingly, allowing the process to succeed on Tuesday so that a process can unfold is part of protecting the independence, dignity and effectiveness of the Office of the Public Protector.
What is clear is that the impeachment process vote may be closely decided on partisan lines and we must also expect nothing less than an ideologically polarised National Assembly outcome. Disappointingly, MPs voting along polarised partisan lines ignore their constitutional obligations and duties as members of the National Assembly.
Yes, an absolute position must not be taken that Mkhwebane must be removed, until the impeachment process is concluded and she has "had her day in court".
Yet, nobody should be saying that Mkhwebane is untouchable.
US Judge Frankfurter (in a dissenting opinion in Bridges v. California, 314 U.S. 252, 292 (1941)) once said that judges are not "anointed priests" entitled to special protection from the public clamour of a democratic society.
The minimum constitutional processes, including those which have no legal consequences for the Public Protector, must be respected and promoted by our political elite. If the National Assembly fails to give the green light to the start of the impeachment process, it may effectively declare the Public Protector as being above parliamentary accountability and the law.
This would embolden the Public Protector to assume more powers than either parliamentarians or the judiciary whose members, including Chief Justice Mogoeng Mogoeng, can be subjected to rebuke and sanctions by the Judicial Service Commission.
A vote against at least the start of the process would not only deny Mkhwebane the opportunity to clear her muddied name; it would also be a public declaration that the Constitution of the Republic, its provisions – in particular, section 43(3) and section 48 – and consequent processes deserve no respect and reputation from a legal practitioner.
The National Assembly is directed by section 42(3) of the Constitution to:
Members must thus serve the people of South Africa and not their narrow party-political interests.
Section 48 makes it clear that you cannot remain a member of the Assembly if you disregard your oath of office in which you swore "faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2".
I am indebted to Professor Monroe H Freedman, former dean of the Maurice A. Deane School of Law at Hofstra University, who argued in another setting that politicians can be emboldened if they are able to ignore the law.
If members of the National Assembly cave into pressure to vote against the process to assess the fitness of Mkhwebane to hold office, "the irresponsible politicians [would have] won, and they can only have been emboldened to do the same thing again in the future".
It must not be forgotten that the National Assembly's expected landmark vote will define not only the respect of our parliamentarians for the Constitution and the rule of law, which the ATM correctly supports, but it will also clarify if there is any meaningful role for the National Assembly as a quasi-judicial body during impeachment proceedings.
Such functional independence must never be allowed to be abused or be left unattended when politicians do not know how to rationally use it. But, allowing the National Assembly to function as simply another political branch of government when it is required to sit as a quasi-judicial body effectively entirely undermines its legitimacy.
The politically appointed Public Protector has enormous powers, which makes accountability a critical tool to ensure the legitimacy of her office and avoid damage to the rule of law.
Politicians must make any incumbent of the Office of the Public Protector accountable as required by the Constitution, and should not ignore this obligation by allowing themselves to be drawn into political advocacy factions in this matter of national interest.
- Professor Dr Omphemetse S Sibanda, Legal Scholar Without Borders, is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North-West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the former Vista University, Soweto Campus.
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