Friday, June 20, 2014

Lets adopt Best Labour Pratice During Impeachment

One of the current debates in our nation for members of the executive at the County and National levels of government is the question of impeachment. Two governors have been impeached by their respective assemblies and most importantly, a cabinet secretary is now facing an impeachment motion. Broadly speaking, ‘to impeach’ is to bring an accusation against someone through an appropriate tribunal. However the Constitution talks of ‘dismissal’ not ‘impeachment’.

One of the missing link in the impeachment of cabinet secretaries is the blatant disregard of best practices in handling employee affairs. Often political considerations overpower objectivity. As regards cabinet secretaries, they occupy a constitutional office by virtue of Article 152 of the Constitution. Cabinet secretaries are employees of the National Executive and are accountable to the President collectively and individually by virtue of Section 9(2) of the National Government Coordination Act. On the other hand they also occupy an office that attracts huge political interest and oversight from the national assembly. They are for instance are appointed on approval by the national assembly and can likewise be dismissed by the President or through the national assembly.

Article 152 (6) - (10) of the Constitution has an elaborate procedure for appointment and impeachment of a cabinet secretary. As for impeachment, a member of the national assembly may propose a motion to dismiss a cabinet secretary for violating the Constitution, committing an international crime or gross misconduct. If approved by a third of the members, a committee is formed to investigate. In carrying out such investigations, it is expected to afford the cabinet secretary an opportunity to present a defence. The committee can either find the allegations to be substantial or unsubstantial. If substantial, the cabinet secretary is given an opportunity to be heard (presumably in the national assembly) after which a vote is taken on a resolution to dismiss the cabinet secretary. If the motion is supported by a majority, the cabinet secretary stands dismissed.

However if you examine the manner in which the national assembly has been conducting the impeachment process, it raises a critical question. Are best practices in labour law practice on dismissing employees are adhered to? For illustration purposes, let’s take a cabinet secretary to be an employee of the national executive. Is a cabinet secretary accorded a fair chance to be heard? What is the best labour law practice in handling impeachment of cabinet secretaries? Are there any benchmarks so as to ensure that political witch-hunt is well checked? Who enforces these standards? These and any others are the questions that the process being undertaken by Parliament raises.

The national assembly can borrow benchmarks from the procedure of dispute resolution in strictly labour disputes. This procedure is provided under the Employment Act and Labour Relations Act. In a nutshell, once a dispute arises within an employment relationship, it is placed before a conciliator. The conciliator listens to both parties, establishes whether there is a dispute and gives a decision on how best to resolve the dispute. If parties fail to agree, the parties can still go to the Industrial Court. However the Industrial Court can still ask parties to attempt settling the dispute through alternative means including conciliation, negotiations, mediation or arbitration. Once these mechanisms fail, the Court will inevitably render its decisions, which parties must obey. If dissatisfied, one can always appeal. In doing all these the Court will seek to ensure that an employee is accorded a fair hearing. Meaning an employee should have a date with his/her accusers and give a response to every allegation. If an employee is not accorded this chance, then the decision may be declared invalid.

The position of cabinet secretary is both a constitutional office. However, it is still in the best interest of the country for the national assembly to adopt a procedure that guarantees the rights of a cabinet secretary against whom allegations are made. This will ensure an objective criterion is adopted in determining for instance what amounts to gross misconduct. The means of arriving at a decision must be seen to be fair and just and not an attempt to settle political scores. The national assembly should be innovative in applying Article 152 of the Constitution so that cabinet secretaries are assured that they have the blessings to govern their dockets without the fear of facing impeachment.