Public Protector Busisiwe Mkhwebane on Tuesday came out guns blazing, demanding that the parliamentary process to oust her must be fair as it is currently unconstitutional and unlawful.
Mkhwebane, who took over from her predecessor Thuli Madonsela in October 2016, is about halfway through her seven-year term in office and risk being the first head of one of the country’s six chapter nine institutions to be axed since 1994. On Friday, National Assembly speaker Thandi Modise approved the DA’s motion to have Mkhwebane removed from office and will follow new rules to remove heads of chapter nine institutions adopted last month.
However, Mkhwebane has taken issue with the new rules, describing them as unconstitutional and unlawful in that they amount to a violation of the constitutionally prescribed duty imposed on organs of state to protect the independence of chapter nine institutions.
“The rules also do not adequately provide for audi alteram partem (the principle of listening to both sides of the story) at all in their application and implementation,” Mkhwebane said.
She insisted that the rules adopted in December breach the rights heads of chapter nine institutions as provided for in section 34 of the Constitution. According to Mkhwebane, the rules do not make provision for the requisite non-participation or recusal of a number of seriously conflicted parties in any of the envisaged processes including the making of crucial decisions.
Mkhwebane said there are several parties both in the executive and the legislature, who are currently or have recently been the subjects of her investigation. I liken this to a situation where a judge, magistrate or arbitrator condemns someone and is later expected to conduct a fair trial of the very person,” she added. On Tuesday, Mkhwebane wrote to Modise to request an undertaking from her that the grossly unfair process to oust her be temporarily suspended until all the issues she (Mkhwebane) has raised have been adequately addressed amicably.
The Office of the Public Protector along with the SA Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the Auditor-General and the Electoral Commission are the country’s chapter nine institutions, whose key role is to strengthen constitutional democracy.
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