Some senior public servants are a law unto themselves

SHARE   |   Monday, 19 June 2017   |   By Adam Phetlhe

Botswana public service has just emerged from another Public Service Day. This is where all manner of good things are said about it coupled with pledges from those at the top to hold the highest standards of professionalism, good governance, accountability and the rule of law possible. But lo and behold! This in reality is complete hogwash and a serious departure from these pledges the moment the ‘fat cats’ return to their offices. In this conversation, I look at, and highlight incidents which demonstrate that some senior public servants are the law unto themselves aspect; reasons and solutions.

Incidents   

The public service is managed amongst others through the Public Service Act 2008 (PSA) which defines for example processes and procedures to be set in motion should any public servant be in conflict with it either through acts of commission or omission. This becomes mandatory and not discretionary. As it turns out though, known cases so far indicate that it’s all discretionary which is not derived from any lawful instrument than mandatory. The Telegraph dated June 14, 2017 carried a headline “PSP dragged before court for sacking a senior official”. Reading the story under this headline, it becomes apparent that the said senior official was dismissed from employment without being subjected to the provisions of Section 26 Part VII on Termination of Appointments and the principle of duty to act fairly by the PSP. This story, I must add, was extensively covered in the private media early last year when it emerged. The PSP is the head of the public service, who is expected to comply with the PSA without fail. From what is in the public domain so far, it is safe to conclude that this is a case consistent with abuse of office and arbitrary conduct. If the PSP felt that the senior official had contravened the PSA or any code in any form or shape, all he had to do was to invoke the Act. The Telegraph story must have been an embarrassing one for the PSP to emerge during the Public Service Day with foreign guests in attendance.  

Public servants from across the board have taken their numerous unfair labour practice related cases to courts where in some instances, they have succeeded. One is immediately reminded of the Statistics Botswana case where Justice Ketlogetswe ruled in November 2016 that it is unlawful to remunerate differently, employees doing the same jobs with the same qualifications. This is against ILO Convention 100 on “Equal remuneration for men and women workers for work of equal value”. Ever since this ruling, Statistics Botswana has failed to enforce it without good cause where the Statistician General is now expected to show cause why she should not be jailed for contempt of court on June 19 this year. The Commander of the Botswana Defence Force complied with a court order to re-instate two army employees after being threatened with imprisonment late last year. The Permanent Secretary in the Ministry of Agriculture and Food Security has also been at one stage threatened with imprisonment for also failing to comply with a court order. The list is endless. In all these and other cases, public servants become the biggest victims of their own bosses. If the most senior public servant in the form of Permanent Secretary to the President flouts the law with impunity as is evident in the case of the senior official he has dismissed, what more do we expect from his juniors? It is almost a given that for court orders to be respected and enforced, jail threat is the solution. 

Reasons for being a law unto oneself       

In the incidents mentioned above, senior public servants willfully refuse to embrace the principle of the rule of law, a cardinal imperative expected of people in their positions. In serious administrations which genuinely adhere to the rule of law, these senior public servants would have been relieved of their positions precisely because they have compromised the vision and mission of the public service. The Public Service Act provides that “The PSP shall be the head of the Public Service and shall, subject to the Constitution and this Act, have vested in him the administration of the public service”. This provision is far away from suggesting arbitrary conduct. It is common knowledge that the PSP position is a dual-responsibility position – political in that the President appoints the incumbent who becomes secretary to cabinet and administratively as head of the public service. You don’t have to be a rocket scientist to conclude that the PSP acts specifically under the sole direction of the President. It should be borne in mind that the Executive is notorious for ignoring and disrespecting court orders which conduct predictably spills over to senior public officers. These senior public officers would therefore have the political and administrative backing deriving from the dual position of the PSP to be a law unto themselves. Who would on his or her own take the risk of being fired by the same PSP for refusing to comply with court orders or jailed for the same if they didn’t have a wall as solid as the Berlin Wall?

Solutions

I am afraid there are no solutions in the current status quo and under this administration. The rule of law is simply not in its vocabulary. But having said that I will offer them nevertheless. Punitive legal costs paid personally by senior public servants who are found to be in contempt of court or the PSA for no good cause would be desirable and would serve as a deterrent to the ‘errant’ behaviour and conduct of these senior public servants or those who may be tempted to follow suit. As long as these senior public servants do not feel personal financial pinch in the main for acting contrary to the law, we will continue to play bo black bampatile (hide and seek). It is evident that the PSP is not intent on cracking the whip on his ‘errant’ senior public servants because he is also caught in the same act. His immediate supervisor is not helping the situation as well because he does not crack the same whip on him. In the end, the public service remains characterised by sheer misdirection and bad leadership at the top. What we are sure to get is continued flagrant and selective application of the PSA to try and redeem the otherwise lost cause at the public service. The conduct of senior public servants as described above results in a battered and hard-to-redeem public service. The morale and motivation in the service take a hard knock like a football player who takes such a knock on his/her knee. Those who have tried their luck in football would know how painful and disabling that knock is. Global Centre for Public Service Excellence says “Public service morale and motivation profoundly affect outcomes”. This, I will add, is as a result of a public service in auto pilot or in the intensive care unit. The levels of trust in its leadership by both public servants themselves and the general public drastically decrease with poor service delivery, the consequent. One still vividly remembers a BTV story where a senior public servant told his junior that he was being transferred because it was an election year and that bagolo did not trust him. Was any action taken against the senior whether it was made public or not? Your guess is as good as mine.

A famous quotation by the immediate past South African Public Protector that “When Ethics and Governance Fail, you get a dysfunctional organisation” suffices. This is precisely the core of this article. The public service may be functional like an aircraft on auto pilot but for how long one may ask? The situation with the public service cannot be discussed in isolation of how the executive is running the country. The very ministries which ignore court orders are led by political principals who would be aware of them. The Patriot on Sunday reported late last year that when a court had ordered the imprisonment of the Commander of the BDF, a meeting between the President, the Commander himself, Commissioner of Police and the Minister of Defence convened a meeting to hatch a plot on how the Commander could escape it. Under the real threat of imprisonment then, this argument fits the bill and is more believable. It suggests therefore that other similar meetings have probably taken place to circumvent the rule of law. Unless something drastic and urgent is conjured (which doesn’t appear to be the remotest of possibilities), we shouldn’t be surprised or shocked by senior public servants being perennially a law unto themselves. For the public service to genuinely aspire to give the public quality service, it must first learn to comply with the law. Anything less is a tired public relations stunt we have become accustomed to. Judge for Yourself! 



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