QUESTION OF THE DAY
Could all public servants be removed from office by executive order?
A public servant is supposed to have security of tenure. He/She should not be victimized. He/She should be subjected to due process when accused of any wrong doing.
Section 169 Subsection 1 states “(1) No public servant shall be –
(a) victimised or discriminated against either directly or indirectly for having discharged his or her duties faithfully and according to law;
(b) be removed from office or reduced in rank or otherwise punished without just cause.
Who is a public servant?
Subsection (2) of Section 169 states: “(2) In this section, “public servant” means a person holding an office in a public service, a person in the service of a local government authority, and a person in the service of a Public Enterprise.”
It should therefore be clear that any unilateral action to dismiss a public servant without due process is unlawful and unconstitutional. The executive has no constitutional power to dismiss any public servant without following the Constitution or the Public Service regulations.
Take the office of magistrate, registrar and so on who are appointed by the Judicial Service Commission as provided for by Section 146 of the Constitution. Could they be lawfully dismissed by executive order? The answer is in the negative. Section 231 Subsection 5 states: “Without prejudice to the provisions of section167,but subject to the other provisions of this Constitution,the power to make any appointment toa public office includes the power to dismiss any persons appointed.”
It is a sign of impunity to dismiss a person and order his or her arrest without any prior auditing exercise or any other form of investigation being undertaken. This implies presumption of guilt until proven innocent, which is against the letter and spirit of the Constitution.