In the manual on disciplinary procedures in the public service, there are three types of suspension as interim measures pending disciplinary or criminal proceedings.
These are summary suspensions, forced leave and precautionary suspensions.
With regard to a summary suspension, the manual provides sufficient and satisfactory safeguards to ward off any form of injustice with respect to the duration of the suspension as well as the financial interests of the employee in question.
Equally sufficient and satisfactory are the safeguards provided by the manual with respect to forced leave up to a maximum (now) of 80 hours imposed by the head of department on an officer under his responsibility when the latter is being investigated, has been arrested by the police in connection with a criminal investigation or is being investigated in connection with a disciplinary offence. No financial hardship whatsoever is suffered by the officer in question while the period of forced leave is reasonable and acceptable, not to mention also necessary, in the circumstances.
It is under the circumstances of precautionary suspension that the situation may become complex and, in the end, even create unforseen and unwarranted injustices.
The procedure involved whenever the head of department opts for this type of suspension is quite technical, bureaucratic and lengthy. Initially, the head must make the recommendation to the Public Service Commission, which, after due consideration, recommends to the prime minister whether or not the officer should be suspended for precautionary purposes.
Pending the decision of the prime minister, acting on the recommendation of the PSC, the head of department may suspend the officer from the exercise of the powers and functions of his or her office for precautionary purposes. Should the prime minister confirm the precautionary suspension, there is a maximum of six months to determine whether criminal charges are issued in his or her respect from the date of suspension.
If no criminal charges are issued, the precautionary suspension is normally lifted but if charges are issued, that suspension remains in place.
A public officer suspended for precautionary purposes shall receive 80 per cent of his or her basic salary, unless the PSC approves a higher proportion of the salary.
Once criminal charges are issued, followed by an arraignment, the suspended public officer starts living hell despite the right to the presumption of innocence.
It is no exaggeration when I state that, once, I had a case of a suspended public service employee against whom a criminal complaint was filed in 2012, with the trial starting only in 2014. Criminal proceedings were still pending in 2020, when I had to hand over my brief to another lawyer.
Heads of department and the government in general should avoid ordering prolonged suspensions of their employees, even in cases where criminal charges are issued. Such suspensions would constitute a grave prejudice to the citizens’ right to a speedy trial and justice.
Unless the administration feels that an exceptionally hard and incorrigible case where reinstatement pending criminal or disciplinary proceedings would put the public interest completely at risk and would shake the confidence and faith of society in public administration, prolonged suspension must be avoided.
It is crucial that the employer or head carry out the investigation as quickly and as efficiently as possible to minimise the time the employee remains suspended- Mark Said
When the period of suspension is no longer reasonable, justified or acceptable, enormous and severe anguish is experienced by the suspended employee charged with impinging upon his or her right to live with dignity and earn a livelihood.
The prolonged suspension, by itself, constitutes a grave prejudice to the right of the citizens to have their case decided in the shortest time possible, with justice done and seen to be done.
Not only would prolonged suspension by itself cast stigma on the employee concerned but the stigma would persist as long as the suspension order operated without any finality to the accusations being inquired into against the accused concerned.
Any such delay in judicial proceedings casts a shadow on the government servants’ character and integrity, on the one hand, and, on the other, the subsistence allowance, which is required under law to be paid to the suspended employee, would be a loss to the public exchequer as the suspended government servants would draw their reduced salaries without any corresponding duty to work and earn their livelihood.
Apart from the endemic and unacceptable delays in judicial proceedings, if the criminal case and the departmental proceedings are based on the same set of facts, it would be unjust, unfair and oppressive to uphold the conclusions made in the ex-parte departmental proceedings after the prosecution’s case was dismissed and the appellant was acquitted.
Suspension during investigations and suspension as a form of disciplinary sanction have been regular news features over the last few years.
The question of whether or not to suspend an employee under investigation is always a difficult one for the government and employers to grapple with, and has only become more of a live topic in the wake of some high-profile incidents in our country. This decision is often made in a highly pressured and time-sensitive environment at the outset of the investigation process, when nobody has all of the information available.
It is crucial that the employer or head carry out the investigation as quickly and as efficiently as possible to minimise the time the employee remains suspended.
This is particularly difficult where there is a criminal or regulatory angle but I believe there is still room for improvement to minimise unnecessary or unwarranted hardship as far as possible.
Mark Said is a lawyer.