Disciplinary code and procedure in the public service in Lesotho : an exploratory investigation

• DOI: 10.10520/EJC177116
• Published date: 01 January 2015
• Author: T. Molapo,K.E. Mosito
• Pages: 89-116
• Date: 01 January 2015

_____________________________

* K.E. Mosito KC (PhD) is a Senior Lecturer in Law and the Dean of the Faulty of

Law at the National University of Lesotho.

** Molapo T. Is a Lecturer in Law and Head of the Department of Public Law at the

National University of Lesotho.

DISCIPLINARY CODE AND PROCEDURE

IN THE PUBLIC SERVICE IN LESOTHO:

AN EXPLORATORY INVESTIGATION

Mosito K. E.* & Molapo T.**

Abstract

This article essentially, explores and describes the seeming fairness of a

disciplinary process in the Lesotho public service and, advances guiding

principles that can be used by the public service disciplinary authorities to

achieve a fairer experience of the disciplinary process in the public service.

It also endeavours to discover public officers’ legitimate expectations

within the public service laws. It is based on the legislative provisions and

judicial pronouncements as well as literature on human resources’ studies.

It concludes by highlighting tenets that should be observed in handling

public officers’ cases so as to ensure that they do not render the

disciplinary processes traumatic, unfair and not reliable, but rather, to

make discipline more effectively.

Introduction

The public service is a culmination of the intersection between

administrative, constitutional and labour laws. A public officer is

for that reason, a product of this intersection and should match its

dictates. Like most nations in Africa, Lesotho has an imperative

drive for socio-political and economic development. A disciplined

public officer is therefore, the greatest asset for that purpose. The

public service is therefore, one of the most important vehicles in the

realization of this noble objective. Needless to emphasise, this

objective cannot be fully realized where incompetence and

indiscipline reign over public officers. This article has three main

aims. Firstly, it explores and describes the fairness of the

disciplinary laws governing public officers in Lesotho. Secondly, it

90 Disciplinary Code and Procedure in the Public Service

evaluates the said laws with a view to highlighting the tenets

underlying their provisions. Thirdly, it attempts to locate the

sources of legitimate expectations arising out of the said Lesotho’s

public service disciplinary laws. Lastly, it concludes by stressing the

salient issues discussed throughout the article.

The lexical order of sources and rules

The legal framework for the governance and administration of

public officers in Lesotho comprises the Constitution; the Public

Service Act 2005, the Public Service Regulations 2008, other Acts as

well as the various Codes of practice made under the Public Service

Act. In its interpretation section, from the Constitution interprets

the terms "public officer", "public office “as well as "public

service".

1

As per that interpretation, the term "public officer" is

defined as a person holding or acting in any public office. The term

"public office" is defined as any office of emolument in the public

service. The term "public service" is defined as the service of the

King in respect of the government of Lesotho.

2

The object of the Public Service Act is to develop and maintain a

stable, efficient and effectively managed public service. The Act

does not apply to the offices specified in section 137(3) of the

Constitution to the extent therein specified. The Act provides that,

the term “public service” has the meaning assigned to it in the

Constitution.

3

Also, “public officer” has the meaning assigned to it

in the Constitution. Section 31(1) of the Act repeals the previous

1

Section 154 of the Constitution 1993.

2

In Lesotho, the term civil service is not used by the law. Lesotho uses the term

public service. The term civil service can of course refer to either: a) A branch of

governmental service in which individuals are employed on the basis of

professional merit as proven by competitive examinations, or b) the body of

employees in any government agency other than the military. Thus, a civil servant

or public servant (both these terms are used in ordinary parlance in Lesotho and not

the statutory in struments. The legal word is public officer) is a person in the public

sector employed for a government department or agency. The extent of civil

servants of a state as part of the "Civil Service" varies from country to country. In

the United Kingdom, for instance, only Crown employees are referred to as civil

servants whereas county or city employees are not. Collectively a state's civil

servants form its Civil Service or Public Service.

3

Section 3 of the Public Service Act, No. 1 of 2005.