By SR Balgopal
It would appear that there is some confusion or fear from a number senior civil servants as to how they are supposed to ensure accountability of their Ministry. At a simple level, the Minister is the head of his ministry and is responsible, with his or her government colleagues, for all that happens in the ministry. In this approach, the obligation on civil servants is to serve the Minister and to be loyal to him or her.
The difficulty with this simple approach is that all too often the loyalty of the civil service is to the Minister as an individual who is usually elected. Loyalty to the Minister as an individual means being conscious of the political pressures on the Minister, of the Minister’s personal agenda and of the need to protect the Minister. This approach, unfortunately, leads to behaviour which is at odds with accountability.
For example, it encourages senior officials in ministries to be over-cautious about, or even hostile to, the disclosure of any information that shows the Minister in a bad light. It further promotes a reluctance to acknowledge that, before making a decision, a Minister might have considered a number of options or that a Minister might have rejected strong advice on an issue. While this may be overstating the case, such an approach promotes a view that the Minister is always right and that it is disloyal to undermine this view.
There is another possibility regarding how senior civil servants fit into the Executive. In this approach, the corporation solely comprises the Minister (as an individual) and the senior civil servants. In this approach, the loyalty and duty of the senior civil servants is owed to the corporate entity rather than to the Minister as an individual. While the ministry is personified in the person of the Minister, what is being personified is a corporate entity in which the senior civil servants have duties and obligations, rather like the situation relating to the directors of a company.
We appreciate the fact that there is uncertainty about how relationships within the Executive between Ministers and senior civil servants should be maintained. In short, it seems to us that senior civil servants need to be more assertive in terms of exercising their role within their ministries; they need to focus on serving the department rather than the Minister as an individual; they need to be accountable for their own actions as part of the ministry; and, finally, they need to step back somewhat from the tradition of protecting the Minister at all costs.
Whist accountability is desirable, it is clear that senior civil servants require security of tenure so that they may be able to discharge their duties as stewards of their ministry with the level of independence which is required. One only has to recall the wave of departures in the upper echelons of the Civil Service following the 1982 general elections to appreciate the implication of the amendment which was made to section 113 of the Constitution by Act 2 of 1982. It empowers the government to require holders of certain officers such as that of Permanent Secretary to vacate their offices following a general election. The relevant parts of section 116 of the Constitution read as follows:
“113(2) Notwithstanding any provision to the contrary in this Constitution, but subject to subsection (3), an appointment made under section 87 or 89(3)(h) shall be for such term as may be specified in the instrument of appointment.
(3) An appointment to which subsection (2) applies –
(a) subject to paragraph (b), shall terminate at the expiry of the term specified in the instrument of appointment;
(b) may be terminated at any time after a general election held after the appointment.
(4) Where under any law other than this Constitution, an appointment is made to an office by the Prime Minister, the Deputy Prime Minister, or any other Minister or on his advice or after consultation with him, or with his approval, the holder of the office may, notwithstanding any provision to the contrary in this Constitution, be required to vacate the office at any time after a general election held after the appointment.
(5) Where an appointment is terminated under subsection (3)(b) or (4), no compensation shall be payable to the holder for loss of office by reason of the termination of his appointment, other than such compensation as may be prescribed under the Labour Act and he shall not be entitled to any other damages or compensation under any other law whatsoever.”
Given the above bleak picture depicted by section 113 of the Constitution, it is not difficult to see why many senior officials in ministries are sometimes forced to abdicate their responsibilities. Given the fact that that these officials do not have security of tenure, they are at the mercy of the government of the day or the minister under whose responsibility they operate. The same provisions do not apply as far as officers of lower grades in the civil service are concerned. For instance, for an Assistant Secretary or PAS to vacate his/her office, it is mandatory to initiate appropriate action under the Public Service Commission’s regulations. Senior officers in the service – Permanent Secretaries, Senior Chief Executives, etc., — who have to interact and at times are compelled to do the bidding of politicians are not provided with the same security of tenure.
If this government means business and bears in mind that members of the civil service who were senior officials perceived to be close to the Labour Party were made to leave the civil service following the 1982 general elections, it will no doubt legislate to remove this amendment which has emasculated civil servants. We may see whether this government wishes to have obedient civil servants at its beck and call, or whether it wants to empower senior civil servants so that they can perform their functions – and thus truly place the country’s interest above all other considerations — with independence, integrity and fearlessly.
For proper adherence to corporate governance principles, there is a dire need for officers in the higher echelons of the civil service to be given the security of tenure that their position requires. This government has the opportunity to show that it means business and does not wish to enslave the civil service. A strong civil service is essential for securing the long-term interests of society and it is imperative that appropriate steps are taken to empower our top civil servants.
* Published in print edition on 11 November 2011