The Public Protector, assessment and impeachment

The noun impeachment has received considerable exposure recently both emanating from the United States of America and locally. By Peter Bagshawe

The word has multiple meanings, in overall terms it means” the action of calling into question the integrity or validity of something” whilst the usage of “impeachment” in British legal terms would refer to a charge of treason or another crime against the State whereas in the United States of Americas the reference would be a charge of misconduct made against the holder of a public office.

The United States usage is that which is used locally and has been coined by Public Protector Busisiwe Mkhwebane in regard to the current assessment process commenced in Parliament to review Mkhwebane’s fitness to hold office.

Three United States’ Presidents have been subject to hearings of impeachment, which is a process that involves a decision by the House of Congress to bring Articles of Impeachment against the President, which are then referred to the Senate for a decision. A two-thirds majority is required in the Senate for the impeachment and removal of the President from office.

The first President to have impeachment hearings brought against him was Andrew Jackson in 1867 after his dismissal of the then-current Secretary of War, but this did not meet the required majority. The second President to face impeachment was Bill Clinton who in 1998 faced four articles of impeachment based on allegations Clinton had lied to a grand jury, committed perjury by denying his relationship with Monica Lewinsky, obstructed justice and of abuse of power. The process also failed to meet the required majority. The final process was the bringing of two articles of impeachment against President Donald Trump who faced articles of impeachment alleging abuse of power (relating to aid to the Ukraine and a requested investigation of Joe Biden’s son’s business in the Ukraine) and obstruction of Congress.

In following this process, it became apparent that there are no rules set with regard to the bringing of evidence, with the rules for the Senate hearing being set by the party partisan leader of the Senate in consultation with the Senate Committee.

This led to a situation where no additional evidence was led, despite requests by the Democrat-majority Congress for this to be permitted. The Republican-dominated Senate voted down the Articles of Impeachment against President Trump. Before the debate on the exclusion of Richard Nixon from the impeachment list begins, it is noted that Nixon resigned (after the Watergate scandal broke) before impeachment could be commenced, and he was replaced by Gerald Ford.

The background above is intended to show how seriously the impeachment of a public official is taken and, despite the lack of formal rules applicable in the United States, this is correctly so.

From a local perspective, the lack of rules strikes a chord in that there were no rules in place for the assessment and potential removal of the head of a Section 9 institution.

Section 9 institutions include the offices of the Public Protector, the Auditor‐General, the Electoral Commission, the South African Human Rights Commission, the Commission for Gender