Thursday, August 11, 2022
HomeNEWSMpofu questions expertise of expert testifying in Public Protector impeachment inquiry

Mpofu questions expertise of expert testifying in Public Protector impeachment inquiry

On the second day of the impeachment inquiry of suspended Public Protector Busisiwe Mkhwebane, her legal representative, Dali Mpofu, sought to suggest that the first witness who testified was not an expert, and had no business opining on the matter.

Constitutional expert Hassen Ebrahim was on Tuesday the first witness to testify before Parliament’s committee established in terms of 194 of the Constitution about the powers of the Public Protector’s office, processes to follow in removing the Public Protector and what constitutes a fit and proper Public Protector.

Mpofu started his cross-examination of Ebrahim by asking him if he had a South African legal qualification, to which Ebrahim answered that he got his qualification in Botswana.

At the start of his testimony, Ebrahim shared that he had obtained law degree qualifications in Botswana and England and that he had been – among some of his roles – an executive director of the constitutional assembly.

“So, we need to just establish what you are an expert on so that we know how you may be of assistance to the committee. Correct?” Mpofu asked:

What would you say that is, what are you an expert of?

Ebrahim responded: “I think it’s a fairly difficult question.”

However, he continued to list his experience, which included being part of the negotiation process of the Constitution and its implementation, as well as working in the department of justice as a deputy director and working in the establishment of the office of the Chief Justice.

However, this answer seemed to not have pleased Mpofu, who insisted that he still did not know what kind of expert Ebrahim was.

“Now you have made some statements, which are based effectively, what I will then call your view or your interpretation since you’re not an expert, like everyone else in the street, your view of the Constitution some of which I’m going to deal with. But, I just wanted to know at what level I must deal with them whether with an expert or just like a chit-chat that we might have in the passage.”

Only Parliament can remove the Public Protector

Ebrahim had earlier told the committee what steps needed to be followed before a Public Protector could be removed. He said Parliament was the “decision-maker” under section 194 of the Constitution in removing the Public Protector.

“While the president is responsible for the act of removing the Public Protector from office, he may only do so if the National Assembly has called for the removal of the incumbent and must comply with the National Assembly’s resolution if it does decide that the Public Protector should be removed,” said Ebrahim.

He added that the Public Protector can only be removed on three grounds, which are misconduct, incapacity or incompetence.

“The Public Protector may only be removed from office if (a) the committee finds that she has committed misconduct or is incapacitated or incompetent and (b) following the committee’s finding, the National Assembly resolves that she must be removed.

The National Assembly’s resolution must be supported by at least two-thirds of the members of the Assembly, which is higher than the threshold required in respect of some other Chapter 9 office-bearers. The Public Protector may, therefore, only be removed from office by a super-majority of the lower house of Parliament.”

The inquiry into Mkhwebane’s fitness to hold office sits weeks after President Cyril Ramaphosa suspended her in June, pending the outcome of the inquiry.

Mkhwebane is fighting her suspension and the impeachment in court. She has alleged that Ramaphosa suspended her because she asked questions about what has come to be known as the #Farmgate, where large sums of dollars were allegedly stolen at the president’s Phala-Phala farm.

Ebrahim told the committee that the removal of the Public Protector “is a very serious matter not to be undertaken lightly at all”.

“This is evident from, among other things, the significance of the role that the Public Protector plays in our constitutional democracy and the fact that such removal can only occur with, among other things, a supporting vote of at least two-thirds of the National Assembly.” He said:

In the process of discharging its function, the committee should have due regard for, among other things, the chilling effect that its decision may have on the effective exercise of the Public Protector’s powers by incumbents to that office.

While giving his testimony, Ebrahim told the committee that the Public Protector needs to perform his or her duties without fear, favour or prejudice. Mpofu asked him where the fear might come from.

“Would you agree that it would most likely come from those that she’s investigating?”

Ebrahim said this was why the courts require a super majority for the removal of the Public Protector because the office takes decisions regarding the executive and those in power, and so there should be no fear.

“And you would agree that, therefore, part of the protection that is required for the Public Protector would be if she is investigating those powerful persons, such as the president, who might be able to wield an axe on her – metaphorically?” asked Mpofu.

However, Ebrahim did not agree.

“The only authority that could wield an axe is the National Assembly because the Public Protector is accountable to the National Assembly, so it’s only the National Assembly that could wield the axe. It requires an assembly or the two-thirds majority to declare that, so nobody else can wield an axe.”

The inquiry continues on Wednesday.



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