Will she stay or will she be removed? There are still a few things that need to happen before Public Protector Busisiwe Mkwhebane’s fate is sealed by Parliament.

However, the first step of this journey was taken on Tuesday, when DA chief whip John Steenhuisen’s request that Parliament initiate proceedings to remove Mkhwebane as the Public Protector finally landed on the desk of the portfolio committee on justice and correctional services.

So, Parliament has agreed to remove Public Protector Busisiwe Mkhwebane, right?

No, nor has it begun proceedings to remove her.

What happened on Tuesday was that the portfolio committee on justice and correctional services referred the request by Steenhuisen that Parliament institute proceedings to the rules committee.

It has not decided to remove Mkhwebane, or to begin the process to remove her.

It is, however, a new step taken when compared to the previous two requests, also by the DA, which were both previously shut down at committee level.

Why is it going to the rules committee?

Currently, Parliament does not have rules that set out a process for the removal of the head of a Chapter 9 institution like the Public Protector or Auditor-General. Rules to remove the head of a Chapter 9 institution – not only for the removal of the Public Protector – will now be drawn up by the rules committee.

After National Assembly Speaker Thandi Modise referred the matter to the portfolio committee on justice and correctional services, Mkhwebane wrote to Modise, stating she will go to court if Parliament institute removal proceedings against her, as there are currently are no rules for the removal of the Public Protector. Modise reportedly did not take kindly to Mkwhebane’s tone.

But is it up to Parliament to remove the Public Protector?

Yes, the Constitution empowers the National Assembly to remove the Public Protector.

Section 194 of the Constitution prescribes the following for the removal of the Public Protector: “The Public Protector may only be removed from office on the ground of misconduct, incapacity or incompetence, a finding to that effect by a committee of the National Assembly and the adoption by the National Assembly of a resolution calling for that person’s removal from office.”

This resolution needs to be supported by a two-thirds majority of the National Assembly. If successful, the president must remove the Public Protector.

The Constitution does not stipulate the process to be followed. It does, however, empower Parliament to determine its own processes.

Why is it even before Parliament?

The DA, which was opposed Mkhwebane’s appointment to the position in 2016, feels that Mkhwebane is not up to the task required of her – that she is not a “fit and proper” person to fill this position. Therefore, once the 6th Parliament got going, they asked it to institute removal proceedings against her. 

As her legal woes mounted, calls from civil society that she should be removed, escalated. 

What happens next?

First, the rules committee will have to draft the process to be followed for removing the head of a Chapter 9 institution. This will then have to be passed by the National Assembly.

The matter will be referred back to the portfolio committee on justice and correctional services, or an ad hoc committee if the rules committee decides to prescribe that route. The committee dealing with the matter will THEN have to decide on whether it will institute an inquiry into the Public Protector after which the process – still to be defined – will follow.

While it is yet to be determined what the process will entail, it will in all likelihood provide Mkhwebane with an opportunity to state her case.

The Constitution also states the president may suspend a Public Protector at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person.