PSS WORK WITHOUT WRITTEN CONTRACTS

MBABANE – Principal Secretaries (PSs) have been working without contracts of employment for 14 years. Is this a discrepancy which can be said to be in violation of Section 76 of the Constitution of the Kingdom of Eswatini? However, they are in office on the strength of Gazettes, which legitimise their appointment.

Reads Section 76 (1) of the Constitution: “The King, shall appoint principal secretaries on a renewable five-year contract on the advice of the Civil Service Commission.”

A legal source said the onus was on the Civil Service Commission (CSC) to prepare the contracts for the principal secretaries who serve as chief executive officers or controlling officers of the ministries and government departments.
According to the source, the PSs are in office legally because they were appointed by the highest appointing authority but the absence of the contracts worked to their disadvantage.

“The gainer here is government and the PSs are the losers because they have no contracts. In fact, the contracts, under normal circumstances, should stipulate their terms and conditions of service,” said the source.

Amos Ngwenya, the Executive Secretary to the CSC, said it was important that all government structures met to deliberate on the issue raised by this newspaper. He said there was a need to interpret the constitutional provision on the contracts for PSs.
“We can’t ignore the fact that there’s a need to sit down and talk about the issue you are raising,” said Ngwenya.
Percy Simelane, the government press secretary, said the issue could be best addressed by Mbuso Dlamini, the secretary to Cabinet. The secretary to Cabinet is the head of the PSs.

Dlamini, the secretary to Cabinet, first wondered how the office of the government press secretary could not handle the issue. He then said a questionnaire should be sent to him through the office of the government press secretary, something that was done. He texted a message to this publication to say he did not receive the message from Simelane’s office.

Mduduzi Gina, the Secretary General of the Trade Union Congress of Swaziland (TUCOSWA), said the PSs should be engaged in written-down contracts as per the Constitution. He said the Constitution was just a guide which government should have made practical. In common law, he said a contract was not always supposed to be in black and white but the supreme law made it clear PSs should have contracts.
Meanwhile, subsection two of the Constitution provides that a ministry or a department of the government shall be under the supervision of a principal secretary whose office shall be a public office.

Sources said the Constitution was comprehensive about the duties of the PSs and CSC could even incorporate some of the provisions of the supreme law into the contracts.  Section 191 states that the power to exercise disciplinary control including removal of the PSs rests with the King.
Before exercising any disciplinary control in terms of subsection (1), the King shall direct the line minister to refer the question of the exercise of that disciplinary control to the CSC or appropriate similar body.

(3) The line minister shall cause the person concerned to be furnished with a statement of the grounds upon which it is proposed to exercise the disciplinary control.
It is said that the CSC or other appropriate similar body shall enquire into the facts of the case and shall, where the person so requests, consider any representations made by that person orally or in writing or by legal representative.
The Constitution provides that the Commission or the other body shall report to the line minister its findings on the facts and its recommendations concerning the exercise of disciplinary control.

Where the Commission or the other body reports adversely and recommends the exercise of the proposed disciplinary control, the supreme law of the law further provides that the concerned person shall be entitled to the report. The line minister shall make any comments on the report and transmit the report with the comments to the King.

The section on disciplinary procedure also applies to the office of the secretary to Cabinet who is the head of the PSs, Commissioner or Deputy Commissioner of Police, Commissioner of Deputy Commissioner of His Majesty’s Correctional Services and many other public officers.

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