What Happens When Public Servants Are Not Serving the Public?

One often hears that it’s practically impossible to dismiss a government employee for misconduct. Is this true, or is it just an excuse for lack of political will to enforce the law? Let’s look at the law and procedure. 

Government employees are called ‘public servants’ because their job is to serve the public.

Employees of government ministries and agencies are selected by the Public Service Commission (PSC), which is composed of a chairperson and three to six other people nominated by the president and appointed by the National Assembly for five-year terms. 

Appointments 

A permanent staff member is required to be a Namibian citizen suitable for permanent appointment to the post, based solely on qualifications, experience, level of training, merit, efficiency and suitability.

This means that political beliefs should not be taken into account. 

Appointments, transfers and promotions are normally subject to a 12-month probation period, but the prime minister can approve a shorter probation period or none at all, on the recommendation of the PSC.

Public service employees are covered by the Labour Act 11 of 2007, which sets out basic conditions of employment, as well as being additionally regulated by the Public Service Act 13 of 1995.

If there is a conflict between the two laws, the rule more favourable to the employee applies. 

Misconduct 

The Public Service Act contains a list of actions that constitute misconduct, with additional details in regulations issued under the act.

There is not space to list all the forms of misconduct here, but they include violating any provision in the Public Service Act, being negligent or lazy in performing official duties, being extremely rude to anyone while on duty, being under the influence of alcohol or drugs during working hours, using a government position or state property to promote or prejudice the interests of any political party or private business, or being absent from official duties without taking leave. 

It is also misconduct to violate the Public Service Code of Conduct, Integrity and Ethics.

This code forbids discrimination, bullying or harassment of colleagues and members of the public, among others. It also prohibits victimisation of staff members who report corruption or other wrongdoing. 

Private Work 

Members of the public service are required to place the whole of their time at the disposal of the government.

They are not allowed to do paid private work (including self-employment or any role in a private business operation) without permission from the relevant executive director.

If the work is related to the employee’s official duties, or will interfere with the performance of their official duties, permission must be given by the prime minister in consultation with the president or relevant minister.

These rules are intended to ensure that working hours are not used to attend to private matters and to reduce conflicts of interest that can lead to corruption.

More generally, staff members must not let their private interests come into conflict with their public duties or use their public position to gain any personal advantage.

All staff members must provide their executive directors with information about their private business interests and self-employment activities. 

Misuse Of Vehicles 

Abuse of government vehicles is another form of misconduct. No staff member is allowed to drive a government vehicle without permission.

A staff member who has permission to use a government vehicle must not go outside the authorised route, take the vehicle home without specific written permission, transport unauthorised persons or goods, use the vehicle for anything other than official purposes or drive while under the influence of alcohol or drugs.

Bribes And Gifts

Requesting a bribe of any kind, or failing to report an offer of a bribe, constitutes misconduct.

Staff members are not allowed to accept any gift or benefit in connection with their post without written approval in advance from the prime minister.

If a gift or benefit is offered, the staff member has a duty to report this to the relevant executive director.

Procedure For Charges 

An executive director who has reason to believe a staff member has committed misconduct may issue a charge of misconduct in writing.

A staff member charged with misconduct may be suspended, depending on the nature of the alleged wrongdoing or concerns that the staff member may interfere with witnesses or evidence.

There is no entitlement to receive a salary while suspended, unless this is approved by the prime minister on the commission’s recommendation. But a staff member who is not ultimately dismissed for misconduct is entitled to full payment for any period of suspension. 

If the staff member denies committing misconduct, the executive director must establish a disciplinary committee to consider the case.

The disciplinary committee must include a member of management, the head of the personnel department (or a representative) and any other staff member who has appropriate expertise.

The staff member’s direct supervisor and head of department may not be part of the disciplinary committee.

The staff member has a right to request that a representative of a trade union sit on the disciplinary committee as an observer. 

The disciplinary committee will hold an enquiry and consider the evidence.

The staff member has a right to present their side of the story, to question witnesses and to examine any documents presented as evidence.

The chairperson must make sure there is a record of the enquiry and all the evidence. 

A staff member cannot evade consequences by failing to show up for the disciplinary hearing, as the law specifically covers this ploy.

In addition, a staff member cannot prevent a finding of misconduct by resigning because resignation while a charge of misconduct is pending is treated as discharge for misconduct. 

If the disciplinary committee finds a staff member guilty, it must provide the executive director and the PSC with a record of the disciplinary enquiry, along with a written statement of its findings and its recommendation for sanctions.

Consequences

Possible consequences for misconduct include a reprimand, a fine of up to N$2 000, transfer to another post, a reduction in salary or rank, or dismissal.

A staff member may appeal to the prime minister against the disciplinary committee’s findings. Before arriving at a decision on the appeal, the prime minister must get the commission’s advice. 

This procedure is similar to the steps a private employer would take when considering workplace misconduct. 

What Next?

So the problem does not seem to be that the law makes it particularly hard to address misconduct by public servants. The problem seems to be a lack of rigour in holding public servants accountable to do their jobs properly.

It is a shame, because the misbehaviour of a few tarnishes the reputations of the many public servants who really do work hard to serve the public interest.

What can members of the public do? If you observe misconduct by a public servant, report it to the relevant executive director – with detailed facts.

In that way, you can do your part to help improve government integrity and efficiency.

You can find the Public Service Code of Conduct, Integrity and Ethics here: https://moj.gov.na/documents/1885308/4581717/Public+service+code+of+conduct%2C+integrity+and+ethics.pdf/f506070a-ae40-776f-ba4f-0ae11db8a392?t=1723444439383

* Dianne Hubbard is a legal consultant with many years of experience in public interest law and a passion for trying to make legal issues clear and accessible.

In an age of information overload, Sunrise is The Namibian’s morning briefing, delivered at 6h00 from Monday to Friday. It offers a curated rundown of the most important stories from the past 24 hours – occasionally with a light, witty touch. It’s an essential way to stay informed. Subscribe and join our newsletter community.