Mkhwebane inquiry says its task isn't to determine Public Protector's guilt

The ad hoc committee tasked with the Section 194 Inquiry has been briefed by Parliament’s legal services on its way forward.

FILE: Public Protector Busisiwe Mkhwebane at the Constitutional Court in Johannesburg on 22 July 2019. Picture: Sethembiso Zulu/EWN

CAPE TOWN - The parliamentary inquiry into the fitness of Public Protector Busisiwe Mkhwebane to hold office has been told that its job is not to find her guilty or innocent but to establish whether there were sufficient grounds for her to be removed.

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On Wednesday, the ad hoc committee tasked with the Section 194 Inquiry, so-called because of the section of the Constitution that deals with the removal of the heads of Chapter 9 bodies, was briefed by Parliament’s legal services on its way forward.

An independent panel found that Mkhwebane had a case to answer for after numerous court findings against her.

Led by retired Constitutional Court justice Bess Nkabinde, the panel found prima facie evidence of misconduct and incompetence.

Parliamentary legal adviser Fatima Ebrahim briefed the multi-party committee on the task before it, underlining the importance of a process that is “fair, balanced and beyond reproach”.

She told the committee that the process had to be inquisitorial rather than accusatorial.

“We may use terms such as witnesses, evidence and even charges. I must remind members that we’re not here to ascertain guilt or innocence – the aim is simply to determine whether there are grounds for removal, based on fact and law.”

While the independent panel had found prima facie evidence of misconduct and or incompetence on the part of the public protector, the National Assembly has to consider the evidence and come to its own conclusion, Ebrahim said.

“So, in other words there is no rubber-stamping or absolute reliance on the panel’s report – the purpose of that was to allow for sifting to ensure that the Assembly does not proceed with a matter that is devoid of merit from the outset.

INQUIRY LIKELY TO SIT UNTIL END OF YEAR

The inquiry is likely to sit for the rest of the year and submit its findings and recommendations to the National Assembly by mid-January 2022.

The committee has agreed that instead of employing an evidence leader, it will rely on parliamentary support staff and an external expert in considering the matter.

It will be up to the outside expert to summarise the evidence and to highlight issues needing further probing and questions that need to be asked, under the committee’s guidance.

The committee will next week consider its draft terms of reference, after which members will have a month to work through about 10,000 pages of documents, while the external expert is appointed.

Hearings are expected to get underway in October, when the Public Protector is set to present her evidence. Once a draft report is ready, Mkhwebane will also be given 30 days to respond. The committee will then meet in January 2022 to consider her response and adopt its final report.

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