The facts of the matter were not in dispute: the assistant commissioner of correctional services in Namibia, Tjiuovioje Kahimise, was found by a disciplinary inquiry to have stolen a mobile phone, after he admitted doing so. As punishment, he was demoted from his position as assistant commissioner to the rank of a mere senior superintendent.
The question for the court was whether that demotion in rank carried with it a serious salary reduction as well: was it lawful for his salary to be reduced from that of assistant commissioner to the level that would be paid a senior superintendent?
Kahimise said his salary should continue at the previous grade of an assistant commissioner; the government authorities said he had to be paid at the level of his new (demoted) rank.
'Enhance'
What does the law say? Section 51(13) of the 2012 Correctional Services Act provides, among others, that where a ‘senior correctional officer’ admits having committed the offence with which he or she has been charged, the disciplinary board must report its finding to the commissioner-general and recommend one or more of a closed list of five options: a verbal warning, a written warning, a fine of not more than one month’s salary, reduction in rank or dismissal from the correctional service.
Kahimise’s counsel, Norman Tjombe, argued that the punishment imposed was reduction in rank and that the government authorities were not allowed to ‘enhance’ this punishment later, by imposing a salary reduction as well. In making this argument, Tjombe would have had in mind the provision that all disciplinary steps meted out to an officer must be implemented on the 15th day from the date of sanction, while the reduction in Kahimise’s salary took effect well after that cut-off time. Moreover, there is no mention of salary reduction in the list of punishment options available to the disciplinary board.
Judge Thomas Masuku agreed with these submissions: in terms of the law, it was not open to the court, let alone the disciplinary board, to impose a reduction in salary. He found that the sanction imposed on Kahimise ‘was confined to the reduction in rank’.
'Added sting'
The judge said he took judicial note of the fact that the consequences of a reduction in rank for members of the uniformed forces were considerable. For an officer to be demoted from assistant commissioner, would negatively affect that officer’s ‘esteem, reputation and dignity’ even without the ‘added sting’ of a salary reduction. He said he could imagine Kahimise’s former subordinates, formerly obliged to salute him, now being saluted by him instead. ‘That is a bitter pill to swallow but a necessary disciplinary measure.’
It was not lawful to have added ‘the misery of reducing his salary to the new rank’. The prison authorities had no legal power to do so. If a reduction in salary (in addition to a demotion in rank) were regarded as the proper sanction, then ‘parliament is the proper authority to do so’. Neither the disciplinary board, nor the court, could take over the function of the legislature, he said.
A reduction in salary was not one of the options listed in the Act nor could it be ‘presumed to apply’. It would have to be ‘mentioned’ in the law as a separate sanction before it could be lawfully imposed.
'Difficulties'
Judge Masuku said he accepted that his reasoning might create some ‘administrative difficulties’ but it was a problem that the legislature had to sort out.
There was another section of the law cited by the government authorities in their argument justifying the salary reduction. It says that in a case where someone is suspended in connection with a disciplinary inquiry, and is then demoted in rank, he or she will be paid the salary that goes with the new demoted rank. However, Kahimise was never suspended, and, as his legal team argued, his reduced salary cannot therefore be justified under this provision.
Judge Masuku said that the step of suspending an officer was taken when the alleged offence was very serious and it would not be in the interests of the service to keep the officer at work during the investigations or disciplinary proceedings.
'Ice'
Suspension was a necessary prior element before a salary reduction. But in this case there was no suspension, which also suggested that the offence was not so serious that the person involved had ‘to be put on ice’.
Kahimise must thus continue to be paid his salary as assistant commissioner, while the government was ordered to pay the costs of the case.
Reframe
The last sentence of the order reads, ‘The matter is removed from the roll and is regarded as finalised.’ Perhaps that is true for the courts. For parliament, however, the matter is surely far from over. In fact, its work on the issues raised in this judgment will only now begin. Its members will have to ask themselves whether this outcome is what parliament intended by the legislation. Do MPs really want someone demoted for an offence to be punished merely by a reduction in rank and having to salute people previous subordinates?
If a linked salary reduction was always intended as part of the punishment in a case like this, and if government wants to set an example of how to deal with civil servants who are corrupt or found guilty of an offence like thieving, then parliament will have to get going and reframe the law.
* 'A Matter of Justice', Legalbrief, 2 March 2021
