Eswatini 2005 Constitution

CHAPTER X. THE PUBLIC SERVICE

Part 1. Service Commissions

172. Administration of the public service

(1) The Public Service of Swaziland shall be administered through service commissions or similar bodies established under this Constitution or any other law.

1. The public service may be divided into sectoral units for ease of management and quick delivery.
2. Each sectoral unit may have a separate service commission.

173. Establishment and membership

1. There shall be independent and impartial service commissions established in terms of this Constitution or any other law for the better management and exercise of certain powers and functions regulating the public service or any part or aspect of the public service.
2. A service commission shall consist of not less than three and not more than five members one of whom shall be appointed a chairman.
3. Members of a service commission shall be appointed by the King on the recommendation of a line Minister or any other authority as may be provided in this Constitution or any other law.
4. In making the recommendations to the King for the appointment of a member of a service commission, the line Minister shall proceed in a competitive, transparent and open manner on the basis of suitable qualifications, competence and relevant experience and the Minister shall endeavour to recommend a person who can effectively discharge the responsibilities of that office.

174. Disqualification for membership

1. A person shall not qualify to be appointed as a member of a service commission unless that person possesses relevant training and is of high moral character and proven integrity and that person-
   1. qualifies to be elected as a member of Parliament;
   2. is not a public officer, a Minister, member of Parliament or a member of the King’s Advisory Council or similar body; or
   3. is not a member of a trade union or staff association.
2. A person shall not be disqualified from membership in terms of subsection (1) (b) or (c) where that person resigns or retires from that occupation within a period of three months from the date of appointment.

175. Tenure of office and removal from office

1. The tenure of office of an inaugural chairman and each member shall be six and four years respectively.
2. The chairman and a member shall be eligible for re-appointment for a single term of four years.
3. The chairman or member may vacate office by resignation on notice of three months.
4. A member of a service commission shall be removed from office by the King where a tribunal appointed under subsection (5) recommends that the member ought to be removed from office for –
   1. inability to exercise the functions of office (by reason of infirmity of body or mind or any other cause); or
   2. misbehaviour.
5. Where the Prime Minister (after consultation with the line Minister) in the case of the chairman or the chairman in the case of any other member represents to the King that the question of removing a member of a service commission under subsection (4) ought to be investigated, then –
   1. the King shall appoint a tribunal consisting of a chairman (selected by the Chief Justice from persons who hold or have held or qualify to hold high judicial office) and two other persons recommended by the line Minister; and
   2. the tribunal shall enquire into the matter and report on the facts to the King and recommend whether the member ought to be removed under subsection (4).

176. Functions and powers of service commissions

1. The functions of a service commission shall include appointments (including promotions and transfers) and selection of candidates for appointment, confirmation of appointments, termination of appointments, disciplinary control and removal from office of officers within the public service or any sector of the public service.
2. For the performance of its functions, a service commission may, among other things –
   1. inspect Government offices;
   2. examine official documents, books or other records;
   3. obtain information and advice from any public officer or other Government servant; and
   4. do all such things, including the taking of evidence on oath and the administration of oaths, as are incidental or conducive to the exercise of the functions of that service commission.
3. A service commission may require any public officer or other Government employee whose evidence appears to be material to the determination of any enquiry or investigation conducted by that service commission, to attend at such time and place as may be specified by the service commission, to give evidence or produce any official document, book or other record in the possession or control of that person which relates to a matter in question at any inquiry or investigation.
4. A service commission may, in consultation with the line Minister, make regulations for the better carrying out of its functions.

177. Protection of members

Every member of a service commission shall have such and like protection and privilege in the case of any action or suit brought against that member for any act done or omitted to be done in the honest execution of the duties of that member as is by law given to acts done or words spoken by a judge of the High Court in the exercise of the judicial office.

178. Independence of a service commission

In the performance of its functions under this Constitution, a service commission shall be independent of and not subject to any Ministerial or political influence and this independence shall be an aspect of the exercise of any delegated powers or functions of the Civil Service Commission or any other service commission or similar body.

179. Privilege of communication

A person shall not in any legal proceedings be permitted or compelled to produce or disclose any communication, written or oral, which has taken place between a service commission or any member or officer of that service commission, and the Government, or a line Minister, or any officer of the Government, or between any member or officer of a service commission and its chairman, or between members or officers of a service commission, in exercise of, or in connection with the exercise of, the functions of a service commission, unless a judge of a superior court orders otherwise.

180. Oath of office

A member of a service commission or similar body shall not enter upon the duties of office until that member has taken and subscribed the oath of allegiance and the oath for the due execution of office as set out in the Second Schedule.

181. Delegation of functions

1. Except as may be specified in this Constitution or any other law, nothing in this Constitution shall be construed as preventing a service commission from delegating any of its powers or functions to a principal secretary or head of department, or any other person or body of persons or line managers in respect of certain grades or ranks of officers.
2. Where a delegation of functions is necessary, an appropriate framework for regulating the delegation of those functions shall be put in place before the delegated functions are exercised.
3. Where there is authority for further delegation of functions, that delegation shall be subject to like principles and considerations as outlined in subsection (2).
4. Notwithstanding the provisions of subsection (1), the delegation of powers or functions shall not be deemed to prevent a service commission from exercising any of the delegated powers or functions.

182. Legal representation

Any person appearing before a service commission or any person or body conducting an inquiry or investigation on behalf of a service commission shall be entitled to legal representation at the expense of that person.

183. Secretariat

1. Every service commission shall set up and maintain a competent and qualified secretariat consisting of a secretary and support staff as determined by the body responsible for the public service management or any law.
2. The functions of the secretariat shall include the following –
   1. providing technical and administrative support to the service commission;
   2. keeping proper files and correspondence of the service commission;
   3. keeping proper records of minutes of the service commission;
   4. convening and preparing for meetings of the service commission as the chairman may direct;
   5. advertising new or vacant posts as the service commission may direct;
   6. carrying out any other function which the service commission or chairman may direct.

184. Annual reports

Every service commission shall, as soon as possible after the end of each financial year, submit a report to the line Minister in respect of the discharge of its functions during the past year and the line Minister shall lay every such report before both Houses of Parliament for consideration during budget debates.

185. Application of this Part

This Part applies subject to any express limitation or enlargement to all the service commissions or similar bodies established under this Constitution or any other law.

Part 2. Civil Service Commission

186. Establishment, membership etc

1. Subject to any other provision of this Constitution, the Civil Service Commission is established and constituted in terms of Part 1 of this Chapter.
2. The Civil Service Commission may, among other things –
   1. initiate or cause to be initiated appropriate procedures or processes leading to the selection or short listing of candidates for appointment to public office;
   2. enquire or cause to be enquired into any grievance or complaint whether or not leading to disciplinary action;
   3. exercise appellate functions, with power to vary, in respect of certain decisions by persons or authorities exercising delegated powers;
   4. do or cause to be done any act or thing reasonably necessary for the due and prompt execution of any function prescribed in this Constitution or any other law; and
   5. delegate upon the Chairman or any of its members any of its functions.

187. Appointment, promotion, transfer etc of public officers

1. Subject to the provisions of this Constitution or any other law, the power of appointment (including acting appointments, secondments, and confirmation of appointments) promotion, transfer, termination of appointment, dismissal and disciplinary control of public officers shall vest in the Civil Service Commission.
2. A public officer holding a permanent or temporary position shall not be eligible for appointment to anybody that acts in any advisory capacity to the Head of State.

188. Appointment and removal from office of Ambassadors, etc

1. The power to appoint persons to hold or act in the offices to which this section applies and to remove from office persons holding or acting in those offices shall vest in the King acting on the recommendation of the Minister responsible for foreign affairs.
2. The offices to which this section applies are the office of Ambassador, High Commissioner, Swaziland Representative in any other foreign country or to an International Organisation.

189. The Police Service

1. The Royal Swaziland Police Service shall be responsible for preserving the peace, for prevention and detection of crime and the apprehension of offenders.
2. The Police Service shall have and exercise such other powers and functions as may be prescribed.
3. Subject to any lawful superior orders, the command and overall superintendence of the Police Service shall vest in the Commissioner of Police who shall also be responsible for the administration and discipline of the Police Service.
4. The power to appoint a person to hold or act in the office of Commissioner of Police (including that of Deputy Commissioner of Police) and the power to discipline and remove from office that person shall vest in the King acting on the advice of the minister responsible for the Police Service and the recommendation of the appropriate service commission or similar body.
5. Subsection (4) does not apply in respect of officers below the rank of Deputy Commissioner of Police who, pending the formal establishment of a sector service commission or similar body, shall continue being the responsibility of the Civil Service Commission, subject to any delegation of that responsibility.

190. The Correctional Services

1. The Correctional Services for Swaziland shall be responsible for the protection and holding on terms convicted persons and the rehabilitation of those persons and the keeping of order within the correctional or prison institutions of the Kingdom.
2. The superintendence of the Correctional Services is vested in the Commissioner of Correctional Services.
3. Subject to any lawful superior orders, the Commissioner of Correctional Services shall be responsible for the administration of and the discipline within the Correctional Services.
4. The power to appoint a person to hold or act in the office of Commissioner of Correctional Services, (including that of Deputy Commissioner of Correctional Services) and the power to discipline or remove from office that person vests in the King acting on the advice of the Minister responsible for Justice and the recommendation of the appropriate service commission or similar body.
5. Subsection (4) does not apply in respect of officers below the rank of Deputy commissioner of Correctional Services who, pending the formal establishment of a sector service commission, shall continue being the responsibility of the Civic Service Commission, subject to any delegation of that responsibility.

191. The Defence Force

1. The Umbutfo Swaziland Defence Force consists of an Army, an Air Force and a Navy, in that order of precedence.
2. The primary object of the Defence Force is to defend and protect the sovereignty and integrity and people of the Kingdom of Swaziland in accordance with the Constitution and the principles of international law regulating the use of force.
3. The Umbutfo Swaziland Defence Force is a disciplined, non-partisan, permanent national defence force, ultimately subordinate and accountable to civilian authority.
4. The King and iNgwenyama is the Commander-in-Chief of the Umbutfo Swaziland Defence Force whose members shall be citizens of Swaziland.
5. The Army Commander and the other commanders are appointed and removed from office by the King and iNgwenyama as Commander-in-Chief acting on the advice of the Defence Council.
6. There shall be a Defence Council appointed and removed from office by the King and iNgwenyama on prescribed terms and conditions.
7. The Defence Council is responsible for, among other things, advising the King and iNgwenyama on all matters concerning the Defence Force.

192. Disciplinary control over Principal Secretaries, Ambassadors, etc

1. The power to exercise disciplinary control including removal of the officers to which this section applies vests in the King acting as provided in this section.
2. 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 Civil Service Commission 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.
4. The Civil Service Commission 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.
5. 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.
6. Where the Commission or the other body reports adversely and recommends the exercise of the proposed disciplinary control, the concerned person shall be entitled to the report.
7. The line Minister shall make any comments on the report and transmit the report with the comments to the King.
8. This section applies to the office of –
   1. Secretary to Cabinet;
   2. Principal Secretary;
   3. Commissioner or Deputy Commissioner of Police;
   4. Commissioner or Deputy Commissioner of Correctional Services;
   5. Ambassador, High Commissioner, Swaziland Representative to a foreign country or to an International Organisation.

193. Recognition of other service commissions

1. Subject to the provisions of this Constitution and any other law, other service sectors having separate service commissions or similar bodies may be recognised as part of the public service.
2. The recognition of certain service commissions or similar bodies at the commencement of this Constitution does not preclude the recognition or establishment of other service commissions in terms of any other law.
3. For the avoidance of any doubt, in any case in which this section or this Constitution does not apply the power to appoint, promote, transfer, or discipline or dismiss public officers shall, pending the establishment of the appropriate service commission or similar body continue to vest where it vests at the commencement of this Constitution.

Part 3. Miscellaneous

194. Protection of public officers

1. A public officer shall not be –
   1. victimized or discriminated against for having performed faithfully the duties of office in accordance with this Constitution; or
   2. dismissed or removed from office or reduced in rank or otherwise punished without just cause or due process of law.
2. A public officer who is appointed by the King and who has been removed but not dismissed from that office unless promoted shall revert to the same or equivalent rank in the public service which that officer held prior to the appointment in terms of that section or accept a retirement package.
3. An officer referred to in sub-section (2) shall not have or continue to enjoy any personal right to the salary or related privileges of the position or rank from which that officer has been removed.
4. The matter of a public officer who has been suspended shall be finalised within six months failing which the suspension shall be lifted.
5. Where the suspension is lifted under the provisions of subsection (4) the suspending authority shall give a full report to the line Minister as to the circumstances leading to the suspension and the lifting of that suspension.

195. Pensions laws and protection of pensions rights

1. The law to be applied with respect to any pensions benefits that were granted to any person at the date of the commencement of this Constitution shall be the law that is in force at the date on which those benefits were granted or any law in force at a later date that is not less favourable to that person.
2. The law to be applied with respect to any pensions benefits (not being benefits to which subsection (1) applies) shall –
   1. in so far as those benefits are wholly in respect of a period of service as a public officer that commenced before the date of commencement of this Constitution, be the law that was in force immediately before that date; and
   2. in so far as those benefits are wholly or partly in respect of a period of service as a public officer that commenced after the date of commencement of this Constitution, be the law in force on the date on which that period of service commenced, or any law in force at a later date that is not less favourable to that person.
3. Where a person is entitled to exercise an option as to which of two or more laws shall apply, the law for which that person shall opt, shall for the purposes of this section, be deemed to be more favourable to that person than the other law or laws.
4. All pensions benefits (except so far as they are a charge on some other fund and have been dully paid out of that fund to the person or authority to whom payment is due) shall be a charge on the Consolidated Fund.
5. Subject to the imposition of any reasonable conditions relating to the form in which any payment of pensions benefits is to be remitted, a person who is entitled to the payment of any pensions benefits and who is ordinarily resident outside Swaziland may, within a reasonable time after that person has received that payment, remit the whole of it (free from any deduction, charge or tax made or levied in respect of the remission) to any country of choice outside Swaziland.
6. Pensions benefits shall not be the subject of attachment by order of court for the satisfaction of any judgment or pending the determination of civil proceedings to which a person is a party except where that judgement or civil proceedings are in respect of maintenance.
7. In this section “pensions benefits” means any pensions, compensation, gratuities or other like allowances for persons in respect of their service as public officers or for the widows, children, dependants or personal representatives of those persons in respect of that service.
8. Reference in this section to the law with respect to pensions benefits include (without prejudice to their generality) references to the law regulating the circumstances in which such benefits may be granted or in which the grant of such benefits may be refused, the law regulating the circumstances in which any such benefits that have been granted may be withheld, reduced in amount or suspended and the law regulating the amount of any such benefits.

196. Power of commissions over pensions

1. Where under any law any person or authority has a discretion –
   1. to decide whether or not any pensions benefits shall be granted; or
   2. to withhold, reduce in amount or suspend any such benefits that have been granted,

   those benefits shall be granted and may not be withheld, reduced in amount or suspended unless the appropriate Commission concurs in the refusal to grant the benefits or, as the case may be, in the decision to withhold, reduce in amount or suspend those benefits.

2. Where the amount of any pensions benefits that may be granted to any person is not fixed by law, the amount of the benefits to be granted to that person shall be the greatest amount for which that person is eligible unless the appropriate Commission concurs in that person being granted benefits of a smaller amount.
3. The appropriate Commission shall not concur under subsection (1) or subsection (2) in any action taken on the ground that any person who holds or has held the office of judge of the High Court, judge of the Supreme Court, Attorney-General, Auditor-General or Director of Public Prosecutions has been guilty of misbehaviour unless that person has been removed from office by reason of that misbehaviour.
4. In this section “the appropriate Commission” means –
   1. in the case of benefits for which any person may be eligible in respect of the service in the public service of a person who, immediately before that person ceased to be a public officer, was subject to the disciplinary control of the Judicial Service Commission or that have been granted in respect of such service, the Judicial Service Commission; and
   2. in any other case, the Civil Service Commission or any other Service Commission or similar body.
5. In this section “pensions benefits” means any pensions, compensation, gratuities or other like allowances for persons in respect of their services as public officers or for the widows, children, dependants or personal representatives of such persons in respect of such services.

197. Right of action for wrongful dismissal, etc

1. Where a public officer is removed from office under any of the provisions of this Constitution the removal of that person shall be without prejudice to any right of action to which that person may be entitled under any law for the time being in force for damages for wrongful dismissal or loss of status.
2. The provisions of subsection (1) shall not apply and no damages shall be recoverable where the public officer is offered appointment to another public office in respect of which the emoluments are not less than the emoluments of the office from which that officer is removed.
3. The law relating to rights of action for damages for wrongful dismissal or loss of status shall not be altered to the disadvantage of a public officer during the continuance in office of that public officer.
4. This section does not apply to the holder of the office –
   1. of judge of the High Court, judge of the Supreme Court, Attorney-General, Director of Public Prosecutions, or Auditor-General;
   2. of member of a Service Commission, Commission or Board, established under this Constitution;
   3. to which section 188 applies;

   who immediately prior to the appointment to that office (or where the person has held more than one such office in succession, to those offices) was not a public officer.