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If it were a boxing match, Public Protector Busisiwe Mkhwebane would have caught Speaker of the National Assembly Thandi Modise blindsided.
One is notably a political heavyweight (Modise), but the contender has some law skills under her belt – although she has taken a serious hiding from the country’s senior court judges in recent times.
On Tuesday the embattled Mkhwebane threw in a number of punches at Modise during a media briefing at her offices in Pretoria, coming just as pundits thought she was down and out and her removal from office was a mere formality.
Modise set the ball rolling on Mkhwebane’s ousting last Friday, saying in a statement that she has approved a motion to initiate proceedings to remove the Public Protector from office.
READ: Beginning of the end for Public Protector Busisiwe Mkhwebane
In a statement sent to the media just after lunch on the last working day of the week, Modise gave political parties represented in Parliament up until next Friday to put forward proposed nominees to serve on the independent panel that would conduct a preliminary assessment on the merits of the case against Mkhwebane.
In terms of the process, as soon as the panel is approved it has to come back to Modise with recommendations within a period no later than a month.
The groundbreaking announcement had Mkhwebane’s critics salivating over the prospects of her demise.
The champagne would have been flowing over the weekend.
Just as the hangover was starting to dissipate, Mkhwebane on Tuesday came out to put a spoke in Modise’s wheel.
Some journalists were almost ready to write off the media briefing in Pretoria’s Hillcrest office as uneventful when Mkhwebane, some 20 minutes into her prepared speech, dropped the bombshell that she will fight Modise to reverse her Friday announcement or meet her in court if that is what it takes.
First she tackled Modise’s competency and her ability to act objectively.
She said Modise had already acted in haste where the matter of her removal from office was concerned, suggesting that her objectivity as the Speaker was already compromised.
“I had written to the Speaker, complaining that in its haste to have me removed from office, Parliament had overlooked the fact that it had no rules in place to give effect to section 194 of the Constitution,” she said, referring to a correspondence exchanged with Modise sometime during the second half of last year.
“My letter in this regard alerted the Speaker of this omission and forced her to go back to the drawing board to do things the right way.”
The veiled warning to Modise was: I have been right before and you conceded so; I am still right this time around.
She concluded: “Also of concern is the Speaker’s conduct of making a public announcement about the process to remove me without informing me of the decision. As I indicated on Friday, I only learned about it in the media. To date, I have not heard from the Speaker. This is a violation of my rights to dignity, privacy and confidentiality and has the effect of undermining the effectiveness of this very important constitutional institution.”
In her second body blow, Mkhwebane cast a shadow of doubt on the validity of the new rules which Parliament adopted some weeks before the festive season.
“The rules are 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 9 institutions,” said the Public Protector in her broader argument.
To explain the unconstitutionality and unlawfulness she submitted that the principle of natural justice, audi alteram partem, is not adequately factored into the rules.
That is, she said, “the principle of listening to both sides of the story in the application and execution of the rules”.
Thirdly, Mkhwebane said Modise should be wary that the rules need to allow for people who had an axe to grind with her – including in the courts of law and elsewhere – to excuse themselves from the proceedings to avoid tainting the whole process.
Her list of targets included “several parties both in the Executive and the Legislature, who are currently or have recently been the subjects of investigation”. She then left it for Modise to figure out who these people might be.
She also challenged the constitutionality of the rules being applied retrospectively when the conduct she was being accused of preceded the adoption of the rules.
While the matter looks set to play out in the courts and possibly all the way to the Constitutional Court – which may see it continue to drag for longer than expected – a more dramatic space to watch would be inside the governing ANC.
The party has for some time been kicking for touch when it comes to taking a position Mkhwebane’s fate.
Understandably, the discussion on Mkhwebane’s future has the potential to divide the ANC.
Although some say with confidence that the ANC MPs in Parliament would speak in one voice when the right time comes, the jury is still out.
Nothing short of a two third majority vote of MPs would be required before Mkhwebane’s obituary in office is finally penned.
Over to you, Speaker.
