By Elock E. Shikalepo
THE Constitution of the Republic of Namibia, Article 1, sub-article (1) states the Republic of Namibia is “established as a sovereign, secular, democratic and unitary State founded upon the principles of democracy, the rule of law and justice for all.”
This article aims to demonstrate how the rule of law was omitted and the injustices committed in the crafting of disciplinary measures imposed upon teachers by the authorities, following their nationwide strike. Namibia is a statutory State, implying the State is governed by a set of statutes – commonly known as laws or Acts of Parliament passed by parliament and signed by the president. In laymen’s language, the law should rule, what the law stipulates is what should be brought to life. These statutes form the basis of State leadership and the administration of State affairs, including the administration of justice for all. Public servants are subjected to the provisions of the Public Service Act, Act No. 13 of 1995, together with the Public Service Staff Rules (PSSR) and standing regulations. The Public Service Act, Act No. 13 of 1995, Section 26, deals with issues of misconduct and suspension of staff members. The content contemplated in this section, should of course be read in conjunction with PSSR and by extension, the publication titled – “Being a Public Servant in Namibia, a Pocket Guide.”
This pocket guide presents simplified provisions of the aforesaid section, thereby making the law very easy to apply under any given circumstances. In terms of the Public Service Act, with regard to sanctioning offenders, the disciplinary measures imposed upon teachers are unlawful, unjustifiable and destructive. They appear to have been designed to harm teachers rather than as corrective measures. Offences are classified as major, serious and minor offences (PSSR and Pocket guide p. 91-93), together with their sanctions. In terms of the Public Service Staff Rules and Regulations, the offence of illegal striking as charged against teachers, falls under serious offences (Pocket guide p. 92). The sanctions for such an offence are a first written warning. Then if similar or the same offence has been committed for a second time after the offender has already received the first written warning, the offender will receive a final written warning. Then if the offence is repeated for a third time, after having received the first and second written warning, the offender will be charged with an act of misconduct.
Teachers are given final written warnings by their respective personnel officers, signed by the Permanent Secretary of education, as required for by the law (PSSR). When were teachers given a first written warning for striking? When did teachers commit a similar offence or repeated striking on top of the first written warning to qualify themselves for a final written warning? Is the rule of law not applicable to the administration of justice in education? It is completely absurd for the authorities to reason that they have adopted the principle of ‘no work no pay’. Where is that principle/excuse stipulated in the PSSR, so that it becomes legitimate for the authorities to reason as such? The ‘no work no pay’ principle does not have legal grounds of justification as per the Public Service Act and PSSR and therefore making reference to it is equal to zero. The process of law making is very rigorous and laws should not be ignored under the pretext of false excuses. Teachers are subjected to double unfair labour practices in that they were issued final written warnings without being issued the first written warning as the law requires, and worse of all teachers still continue to endure unfair deductions from their salaries on no legal justifications. When was the law amended to read that the sanction for first striking is a final written warning coupled with salary deductions?
Subsequently, matters of State are matters of statutes. It is not about an individual’s subjectivity, own feelings or opinions on what to do about arising circumstances, but is a matter of what the law reads. The statutory sanctions are of a corrective nature, to bring about an improvement, whereas individual sanctions from those acting ultra vires are usually destructive in nature, and meant to bring about harm. It is my wish that laws will continue to rule and that those entrusted with the leadership of the people will avoid ignorance of the law, but rather make use of the law to administer justice for all. Seth remarked that gone are the days when leadership implied muscles, nowadays leadership means knowing how to work with people.
Elock E. Shikalepo is an education management specialist. He studied education law, management and systems. He can be reached at elockshikalepo@yahoo.com