NO CONSTITUTIONAL RETIREMENT AGE FOR PSs

MBABANE – Had the constitutional provisions been followed, the retirement saga of Sipho Tsabedze could have been resolved without escalating to a court issue. Tsabedze is the Principal Secretary (PS) in the Ministry of Public Service. Section 76 of the Constitution provides explicit instructions on the appointment process for principal secretaries.

Renewable

It stipulates that these officials are to be appointed by the King, based on the Civil Service Commission’s (CSC) advice, and should serve under renewable five-year contracts. Despite these clear provisions, Tsabedze’s appointment, like those of many of his colleagues, deviates from these constitutional guidelines, as principal secretaries typically retire at the age of 60, a practice that constitutional lawyer Sipho Gumedze has labelled unconstitutional. This deviation has roots in the CSC’s failure to draft and formalise the requisite contracts, a point Gumedze has repeatedly highlighted.

Implementing

Victor Nxumalo, Secretary to the Cabinet, expressed uncertainty regarding the delays in implementing Section 76 and refrained from commenting further due to the absence of contracts, which complicates the employment status of the principal secretaries. Gumedze, the attorney, said PSs are actually in office unconstitutionally. He said he did not understand why the CSC, which has a legal department, was not drafting the contracts and submit them to the appointing authority. Asked whether their continuation in office could be challengeable, the attorney said the public, which pays salaries for principal secretaries, deserve to know whether they had been engaged in the five-year contract as stipulated in the Constitution. The Constitution came into effect in 2005. Gumedze said he had all along been assuming that the PSs were contracted in terms of the Constitution. “They are being paid salaries in violation of the Constitution and all of them are in office unconstitutionally,” he said.

Incorrect

“They cannot be employed like civil servants. It’s constitutionally incorrect.” Meanwhile, reacting to this assertion, Nxumalo, the Secretary to Cabinet, said the CSC could be in a better position to comment on the issue because it recommends the appointment of the PSs to the appointing authority. He did not respond to the question on what would become if someone were to go to court to challenge if they were legally in office. Percy Simelane, the Director of Communications at the King’s Office, said the CSC is the relevant authority for handling civil servants’ recruitment, including principal secretaries. “So the CSC is best positioned to respond on the issue of contracts for principal secretaries,” Simelane advised.

Ladder

Simanga Mamba, the Chairman of the CSC, said he would be very brief in this matter, explaining that it is on the ladder and they are working on it. “May I be as brief as that,” the chairman said. Alpheous Nxumalo, the Government Spokesperson, said appointments of PSs, for starters; are sole prerogatives of the supreme authority in the land. “None of us is privy to the inside information and processes of the authority when he takes and doesn’t take certain decisions,” Nxumalo said. The government spokesperson said the issue of the PS in the Ministry of Public Service is just one isolated case, which is being dealt with by the courts, on its merits and de-merits. It must be said that the controversy stems from allegations that government has violated constitutional provisions regarding how principal secretaries should be appointed and managed.

Fixed-term

This constitutional requirement implies that principal secretaries, like politicians and members of advisory councils, should operate under fixed-term contracts possibly linked to a market-related salary and a gratuity. Such terms would provide the head of State discretion regarding the renewal of contracts—potentially avoiding the current legal quagmire. It is understood that government is in violation of the constitutional provisions on how the principal secretaries are appointed and managed.

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