Legal advice to the state on what steps to consider when removing public servants with secured job tenures from office

Legal advice to the state on what steps to consider when removing public servants with secured job tenures from office

CHRISTIAN LAWYERS CENTRE - LEGAL LINK

Legal advice to the state on what steps to consider when removing public servants with secured job tenures from office


There is a worrying trend of impunity, blatant disregard for constitutionality, rule of law and due process by the executive arm of government especially in post conflict Sierra Leone. While past governments are not exempt from this abrogation, the current trends have not only exceeded expectations but have also attracted widespread international condemnations and outcry.
Unfortunately, state institutions which are supposed to proffer sound advice and guidance to the executive arm of government have become more political than political parties themselves. Hence, they lack the moral standing and high ground to proffer sound advice in this regard.

This legal opinion seeks to provide some common sensical approaches on how a government can remove a public servant with secured tenure from office in a more humane, respectful and dignified manner.

It is important to emphasize however that there is actually no sense in a government pursuing an ideology that seeks to replace public servants at will irrespective of their secured term of office. At the very least, public servant with secured tenures should be left to complete their tenures without any political interference,manipulation or control.

But where a government seems desperate to replace public servants notwithstanding their secured tenures, there are ways it can go about doing this that will help produce less conflicting, divisive, hurtful and devastating outcomes.

LEGAL LINK, a non- profit legal company that defends the rights of vulnerable groups including workers rights believes that if this piece of opinion is given due consideration by the state, it may help set good precedent in terms of respectability of the rule of law, constitutionality and due process in the country.

There are five legitimate ways a government can remove a public servant whose position is of interest to them but is however secured in watertight provisions within a legal framework.

Firstly, the government must approach the public servant in a peaceful, friendly and respectable manner requesting his resignation. The government must educate and persuade the public servant on the importance of their wanting of his office to be manned by a political party loyalist. The government must also assure the public servant that all his salaries and full benefits will be paid to him and on time if he resigns from the job. You may be surprised to see how many self-induced resignations that will take place in key public service positions without any overt pressure from the government. Respect is key and everyone needs it.

Secondly, where the first approach fails to work, the government should make some offers to the public servant. Everyman has a price that can make him bow down and give in. The offer could be in the form of an appointment to another parastatal, deputy minster or deputy ambassador position in a remote country etc. The fear of going without a job is perhaps the strongest reason why some public servants are afraid to resign from their secured jobs in the public service. The government must bring to the table an alternative source of income and make a bold appointment to another place. When the public servant willingly takes up his new job offer then the old secured job becomes automatically vacant to be filled. No critic will then be correct to say that the public servant was illegally removed.

The third approach is the patience approach and is usually referred to as the best approach. The government can patiently wait for the specified term of the public servant as stated in the legal framework to elapse before replacing him. Majority of the legislations that guarantee fixed tenure does not exceed 5 years. The second 5 year term is usually at the prerogative of the executive arm of government. Hence, it is wisdom for any government to ensure at the very least that a public servant enjoys his or her 5 years term with proper supervision where doubt exists. This will help to guarantee the independence and credibility of democratic institutions.

I call the fourth approach, the drastic approach. This approach actually demands removing the public servant albeit in line with due process. When the three options mentioned above fails to work and the government is desperate for the position, then it has no option but to remove the Public servant following however the due process of the law. There is no office created by law that does not have a removal clause or procedure. If the removal process demands sending the public servant to a tribunal, the government must obey the procedure, no matter how tasking it may be. As the public servant faces trial to defend himself, the government can have someone act on his behalf temporarily until final determination of the matter. The challenge however with this approach is that it may be delaying and cumbersome and often times, the votes required for removal may not be secured. This is why many governments finds such approach disincentivising despite its legal advantages.

Last but not the least, is the passing of a Constitutional amendment law in parliament annulling all secured job tenures within legislations.

The government can pass a law (or amend section 61 of the Constitution) abolishing the secured tenures of public servants in extant legislations and subjecting them to the president’s prerogative in relation to appointment and dismissals. This will then become the vogue and it will help make clear to all public servants that their offices will elapse when the government that appoints them vacates office.

LEGAL LINK is of the firm belief that the above approaches are far better than the disgraceful and inhumane and illegal methods currently being employed in terms of removal of public servants with secured job tenures. It is a shame that some government officials have even openly defended and legitimized the bastardization of all our legislations and constitution without regard to due process.

This statusquo is anathematic to democracy, good governance, rule of law and constitutionality; and will certainly put Sierra Leone in a bad light before the international community as is currently happening now.

It is important to also emphasize that Sierra Leone is not a police state but rather a democracy and the government must endeavor to act within the confines of the law and adhere to due process where it intends removing public servants that are protected by a fixed tenure. Enough of the tit for tat approach!

Where the executive arm
of government continues to disregard due process, it is expedient for Parliament, the law makers, to demand respect for its laws from the Executive and also the Judiciary to enforce and hold to account the Executive regarding adherence to the laws passed by parliament through issuance of specific orders and directives.

It is only by adhering to the above that we truly can create the enabling environment for peace and national cohesion to thrive in our nation.

All Rights Reserved

LEGAL TEAM

CHRISTIAN LAWYERS CENTRE

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