Wednesday, October 4, 2023

‘PS powers to suspend civil servants non-delegable’

Making the argument that a senior government officer gave himself powers way above his pay bracket, two employees at the Mogoditshane Sub-District Council have approached the Gaborone High Court to challenge a disciplinary action that the former took against them. The matter in question relates to the Ministry of Local Government and Rural Development but the argument that the suspended duo is advancing has implications for the rest of the civil service.

The precise details of such wrongdoing are sketchy at the moment but a January 15, 2016 letter from the senior Assistant Secretary, Milton Keitshokile to Gosiame Monnawatsie, a Commercial Affairs Officer, says that investigations into a November 17, 2015 incident had revealed that the latter was implicated.

“Accordingly, pursuant to the Public Service Act no. 30 of 2008 Section 25 sub section (2), you are suspended with immediate effect,” Keitshokile’s letter reads.

A week later, Motsei Moutswi, a Physical Planner, received her own suspension letter in which Keitshokile notified her that the Mogoditshane police had notified him that they wanted to prosecute Moutswi.

However, Monnawatsie’s interpretation of that provision ÔÇô as that of the Botswana Land Board Local Authorities and Health Workers Union (BLLAHWU), doesn’t comport with the Council’s. The Union says that Section 35 confers powers to suspend an employee pending investigation solely on the office of the Permanent Secretary.

“It [states] that if your office becomes aware that criminal proceedings should be taken against an employee and you are of the opinion that such officer should be suspended pending investigations, your office shall report the matter in writing to the Permanent Secretary recommending the suspension of such employee,” the Union wrote to Keitshokile, echoing the precise language used in the Act.

Sub-section 1 of the provision in question reads: “If the supervising officer becomes aware that criminal proceedings have been or are about to be instituted against an employee, or considers that disciplinary proceedings should be instituted against a public officer, and is of the opinion that such officer should be suspended from the performance of his or her duties pending the taking of proceedings against him or her, the supervising officer shall report the matter in writing to the Permanent Secretary recommending the suspension of such employee.” On receipt of a report under the latter, Sub-section 2 says that the Permanent Secretary shall decide whether the employee should be suspended.

BLLAHWU’s effort came to nil, with Keitshokile writing back to invoke a two-year old savingram from the Permanent Secretary’s office titled “Delegation of Functions to Heads of Departments within the Ministry of Local Government and Rural Development.” In terms of that savingram, the position of Senior Assistant Council Secretary is mentioned among Heads of Sub District Councils to whom powers to appoint, discipline and promote have been delegated. This delegation of authority is being contested by the suspended duo who have launched a court case through their lawyers, Ezekiel Mmekwa Attorneys.

Section 16 of the Public Service Act provides for delegation of powers by stating that the Permanent Secretary to the President to delegate his powers to the director or any other Permanent Secretary. Such delegation is to be made with the consent of the president and in writing. The provision adds that “A power or function delegated under this Part may, if the instrument of delegation so provides, be further delegated.” In the affidavit that he has affidavit deposed to, Monnawatsie that “the Permanent secretary cannot delegate authority or suspend (as empowered by Section 35) under Section 16.”

Ever since its implementation in 2008, the Public Service Act has been a thorn in the side of the government, with public sector trade unions scoring victory after victory against the government at the High Court.


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