President Making Unlawful Appointments

PRIOR to Amendment No14 of the Constitution, which was promulgated in 1993 (Act 4 of 1993), appointments to senior positions in the police force, the defence forces and the prison service were made by the President (Robert Mugabe), acting on the advice of the Commissioner of Police, the commander of the relevant branch of the defence forces or the director of prisons, as the case may be.

Accordingly, it was the head of the police, army, air force or prison service who made the determination as to whom should be appointed or promoted to a particular rank to fill a vacancy and he advised the president accordingly.

 

The president was required to act on the advice given to him. However, there was a provision enabling the president to give the commissioner, the commanders and the director-general directions of policy to achieve a suitable representation of the various elements of the population.

Amendment No 14 made significant amendments. In relation to the police force, it was to be under the command of the Commissioner of Police (now the Commissioner-General) who would be appointed by the president, after consultation with such person or authority as may be prescribed by an Act of Parliament.

 

The constitution also provides that the Act is to make provision for the administration and discipline of the police force, including the appointment of persons to offices or ranks in the police force and their removal from office or reduction in rank. Similar provisions apply in relation to the defence forces and the prison service.

The Commander of the Defence Forces, and every commander of a branch of the defence forces, will be appointed by the president, after consultation with such person or authority as is prescribed by an Act of Parliament.

 

That Act must also make provision for the administration and discipline of the defence forces, including the appointment of persons to offices or ranks in the defence forces, their removal from office, reduction in the rank, etc.

 

The Commissioner of Prisons is also appointed by the president, after consultation with the person or authority prescribed by Act of Parliament, which Act also must make provision for the administration and discipline of the prison service, including the appointment of persons to offices or ranks in the prison service, their removal from office, and reduction in rank.

The Police Act provides, in relation to the appointment of the Commissioner-General of Police that the president must act in consultation with a board consisting of the chairman of the Police Service Commission, the retiring Commissioner-General, if he is available, and one or two, if he is not available, other members appointed by the president from among the permanent secretaries of ministries.

The Act goes on to provide that the president may appoint, by commission, any person to commissioned rank and may promote any officer to a higher rank or reprimand, suspend, reduce in rank or discharge any officer.

 

There is the qualification that, when exercising the power to appoint, promote, reprimand, reduce in rank or discharge any person, the president must have due regard to, but shall not be bound by, the advice of the minister, tendered after consultation with the Commissioner-General.

In the case of the defence forces, the provisions of the Defence Act are similar to those in the Police Act.

 

The Commander of the Defence Forces is appointed by the president after consultation with the minister.

 

Likewise, the Commander of the Army and the Commander of the Air Force are appointed by the president after consultation with the minister.

 

In tendering any advice or making any recommendation in relation to any such appointment, the minister must act in consultation with a board specifically appointed for the purpose.

 

The board consists of the chairman of the Defence Forces Commission, the Secretary for Defence, the retiring Commander, if available, and one or, if he is not available, two other persons appointed by the president.

 

The president appoints, by commission, a person to a commissioned rank and may promote or temporarily appoint any officer to a higher rank. When exercising his power of appointment or promotion, the president must consider the advice of the minister tendered after consultation with the appropriate commander.

In the case of the prison service, the powers of the president are very similar. The Commissioner of Prisons is appointed by the president, after consultation with the Minister of Justice.

 

Before tendering advice on the matter, the Minister of Justice is required to consult the Prison Service Commission. The president may, by commission, appoint any person as a commissioned officer, and may promote any commissioned officer to a higher rank or reprimand, suspend, reduce in rank or discharge any commissioned officer.

 

When appointing or promoting a commissioned officer or exercising any other powers referred to above, the president is required to pay due regard to the advice of the minister, tendered after consultation with the Commissioner of Prisons.

It can be seen that the president, in relation to the uniformed forces, has complete control as to who will be promoted and who will be overlooked. It is not surprising that the top brass (or should it be top-gold now?) will only salute the president.

In the case of the public service, the president does not have such sweeping powers of appointing/promoting officials.

 

Chapter VIII of the constitution deals with the Public Service. Section 73 establishes a public service for the administration of the country and provides that an Act of Parliament shall make provision for the organisation, administration and discipline of the public service, including the appointment of persons to posts or grades in the public service.

 

Section 77 provides that the power to appoint persons to hold the post of Secretary to the Cabinet or secretary of a ministry shall vest in the president, after consultation with the Public Service Commission.

 

Section 15 of the Public Service Act provides that, subject to Section 11 of the Act, the appointment of members of the public service and their assignment or promotion to officer or posts in the public service will be effected by the Public Service Commission, in consultation with the head of ministry concerned.

 

Then section 18 provides that when considering persons for appointment to, or promotion within, the public service, the commission must have regard to the merit principle, that is, the principle that preference should be given to the person who, in the commission’s opinion, is the most efficient and suitable for appointment to the office or post concerned.

It appears that the president is not happy with the limited role he has in relation to appointments or promotions to senior posts in the public service. It does not give him the same authority as he has in relation to the uniformed forces.

 

The Secretary to the President and Cabinet has directed the Chairman of the Public Service Commission that any appointment or promotion of an officer to the post of deputy director, or to any more senior post, must be submitted to the Secretary in the office of the President and Cabinet for approval by the president.

The effect of that direction is that the Public Service Commission ceases to be the authority which has the discretion to appoint persons to the post of deputy director or above.

 

It may only make a recommendation and then it is the president that makes the actual decision as to whether or not the person in question should be appointed. Section 11 of the Public Service Act provides that the president may give general directions of policy to the Public Service Commission and that the commission must take all necessary steps to comply with them.

 

However, a direction that all appointments or promotions to a post of deputy director or above must be referred to the president for his approval can hardly be described as a general direction of policy. It is an unlawful direction which has the effect of amending an Act of Parliament.

 

The fact that the Chairman and the members of the Public Service Commission comply with the direction from the President’s Office, without insisting that it is their duty to comply with the rule of law, is a serious indictment of their professionalism.

Section 11 of the Public Service Act also provides that if the Public Service Commission fails to carry out any duty imposed on it by the Constitution or the Public Service Act, the Minister of the Public Service may direct the Commission to take such action as he considers necessary to rectify the matter.

 

The Public Service Commission is clearly failing to carry out its duty to make appointments to posts of deputy director or above. It is allowing the president to make the appointments, which is unlawful.

 

The administration of the Public Service Act has been assigned to the Minister of the Public Service. He is responsible for ensuring that the Public Service Commission complies with the provisions of the Public Service Act and the rule of law. He must direct the Public Service Commission, forthwith, to cease its unlawful practice of referring promotions and appointments to posts of deputy director or above to the president.

George Smith is a retired High Court judge.

 

By George Smith