South Sudan: When a resignation is not a resignation
What the South Sudanese politicians should learn about the resignation?
By Daniel Juol Nhomngek, Kampala, Uganda
February 10, 2017 (SSB) — It has become a culture in South Sudan to see the Government employees just resign as they wish sometime with or without following the right procedure. Such a conduct should stop with immediate effect. Even if a person is happy with the system because of poor performance of the government, that does not warrant a politicians under normal circumstances to break the rule of procedure in the resignation process.
The law is that if one wants to resign from the system because of bad governance or another belief he or she holds against the system, then, he or she must follow the right procedure in order to show that he or she knows the system and if her or she is given an opportunity he or she may be able to establish the system.
However in the recent time, some of the politicians who have shown that they are fighting for good governance are not showing how good governance works by following the right procedure and right system. What they must learn from today onward is that good governance start with good system and good system comes through following right procedures in all that is done.
The overall implication of following the law procedures is the presence of the rule of law as rule of law means sticking to the rule of right procedures and the rightful procedures as they represent rule of law should prevail above everything except in the circumstances that I will discuss later in this work.
In relation to the above discussion, it has to be pointed out that whereas it is a constitutional right of the Government employees or civil servants or politicians to leave the government or resign from the government if what the government doing is against their believes, it is not right for them to use wrong procedures when resigning from the government unless there are strong reasons to feel obliged to do so.
One of the strong reasons may be in a situation where a person who wants to join the rebels but still working with the government, in such a case it is excusable because of the fact that he or she may be imprisoned or put under house arrest if he or she resigns publicly under suspicious circumstances.
In order to avoid withdrawing unwarranted consequences to him or herself, the best thing to do is to pretend to be working with the government until he or she gets an opportunity to go on the Government’s mission abroad and from there he or she is free to declare his or her resignation orally or in writing addressed to the Government he or she was working with. In that case he or she can defect from the Government to the rebels or forms his or her own rebellion as it was recently done by Mabior Garang and Dr. Lam Akol in 2016 respectively. This is because they are operating outside the law of the country upon resigning and joining the rebels.
As discussed in the above paragraph, it is understandable because even if the politician uses a wrong procedure to resign, then he or she is a rebel and being the rebel means that a person has refused allegiance to, resists, or rises in arms against the government or ruler of his or her country and its system. In other words, the person has rebelled against the whole system as he or she wants to establish a new one hence the old system does not bind him or her.
Nevertheless, in the case a politician or a civil servant who wants to resign from the government with no intention of rebelling against the system, he or she must follow the right procedure as established by law or norms of the place or if they two do not exist, then, he or she must follow common sense as can be understood from the meaning of the word “resignation”.
The resignation means intimation in writing by the holder of an office who wants to resign from the office and the intention or proposal to resign the post either immediately or from a future specified date as put in writing should be sent to a competent authority.
The competent authority is defined by Wikipedia to mean any person or organization that has the legally delegated or invested authority, capacity, or power to perform a designated function (visit: https://en.wikipedia.org/wiki/Competent_authority). Similarly, once an authority is delegated to perform a certain act, only the competent authority is entitled to take accounts there from and no one else.
It therefore implies that in case of resignation of a ministers, permanent secretaries or any other persons appointed by the President, the President is the competent authority to receive resignation letters from them and the hierarchy of reception of resignation communication goes down up to the village leader if he or she has an authority to appoint someone.
Once a public servant or any other government employee has indicated his or her intention to resign, then it is not in the interest of the Government to retain such an unwilling Government servant in service except in the circumstances indicated below-
(i) Where the Government servant concerned is engaged on work of importance and it would take time to make alternative arrangements for filling the post, the resignation should not be accepted straightway but only when alternative arrangements for filling the post have been made
(ii) Where a Government servant who is under suspension submits a resignation the competent authority should examine, with reference to the merit of the disciplinary case pending against the Government servant, whether it would be in the public interest to accept the resignation
Normally, as Government servants are placed under suspension only in cases of grave delinquency, it would not be correct to accept a resignation from a Government servant under suspension. Exceptions to this rule would be—Where the alleged offences do not involve moral turpitude; or where the quantum of evidence against the accused Government servant is not strong enough to justify the assumption that if the departmental proceedings were continued, he would be removed; or dismissed from service; or where the departmental proceedings are likely to be so protracted that it would be cheaper to the public exchequer to accept the resignation.
As seen in above, the resignation may be denied or accepted since some forms of resignation deal with the issues of public interest. Where acceptance of resignation is considered necessary in the public interest, the resignation may be accepted with the prior approval of the Head of the Department, head of state or head of the government or head of the country.
Without forgetting, it must be added that resignation has to be clear and unconditional (Read more about the rules on resignation in the Indian Central Civil Services (CCA) Rules, 1965) if the resignation is to be accepted immediately by the competent authority.
In all the circumstances once the resignation is accepted, it becomes effective at that point and the Government servant is relieved of his or her duties. If the Government servant who had submitted a resignation, sends intimation in writing to the appointing authority withdrawing his earlier letter of resignation before its acceptance by the appointing authority, the resignation will be deemed to have been automatically withdrawn and there is no question of accepting the resignation.
In case, however, the resignation had been accepted by the appointing authority and the Government servant is to be relieved from a future date, if any request for withdrawing the resignation is made by the Government servant before he is actually relieved of his duties, the normal principle should be to allow the request of the Government servant to withdraw the resignation.
If, however, the request for withdrawal is to be refused, the grounds for the rejection of the request should be duly recorded by the appointing authority and suitably intimated to the Government servant concerned promptly.
As seen in the discussion so far on resignation of the government officials or public servants, there are rules that govern their resignation and they must be followed. Otherwise, if they are not followed and civil servant or government officials resigning then such a resignation is not a resignation in the real sense of the word. It is under such circumstances resignation is not resignation.
Some of the reasons for demanding that the person who wants to resign follows a right procedure in resignation are as follows—
First of all, if the Government officials or public servants or civil servants just resign as they wish then the government will become ungovernable due to uncertainty created by unlimited resignations;
Second to it, some of the government officials have been put in charge of the ministries and other public offices of which before they leave they must give accountability through proper report concerning his or her activities in the management while he was still in charge of the office;
Thirdly, since they were appointed officially, they must also resign officially by writing an official resignation letter to the appointing or competent authority. Resigning through oral information to the competent authority (authority as already defined above) is not allowed in the government or in any organizations.
Before I give fourth reason for demanding that a proper procedure must be followed in resignation, I must briefly explain the third reason above by using the recent examples of Minister of Education in Gok State to explain what I mean by resignation not being resignation at all as the subject of this article.
In that respect, the clear example of the resignation that can be considered to be oral and not resignation at all is the resignation of Hon. John Marik Makur as mentioned in the above paragraph. Hon. John Marik Resigned from the Ministry of Education of Gok State without putting his resignation in writing and then directed to the Government of Gok State, which is the competent authority in that case.
In that regard, the proper procedure he should have followed was to write a resignation letter to the office of the Governor and copied it to the speaker of Gok State Legislative Assembly (GSLA). Short of that his resignation, therefore, was not resignation in the real sense and according to the law, he is still a minister and must give accountability to the State and Gok people.
In fact, if there was strong Court of Law in Gok State and the Government challenges such resignation, there is likelihood of it being declared void or a nullity. This is because there was no resignation in the first place, as proper procedures were not followed. This takes me to the fourth and the last reason as to why resignation must be done through proper procedure.
Fourthly, the government is not a social organization where any person can enter and leave as he or she wishes because the government has the rules to be followed. The government sets and administers public policy and exercises executive, political and sovereign power through customs, institutions, and laws within a state, which must be followed by those who rule it.
Rules of resignation are one of those rules that must be followed by resigning public servants. Hence, the government is governed by laws and policies that deal with admission into its system and exit from the system. In order for one to exit from it, he or she must follow the rules of resignation that demands that a public servant must write to the government indicating clear that he or she is now longer interested in serving it. Such resignation request must be approved by the head of a particular government or organization in order to be effective.
The above restrictions show that the government is not like ordinary games that one enters and exits as he or she wishes. It is only in dominos and other games or in the market where one is free to enter and exit as he or she wishes. But even such places nowadays are no longer free because of terrorism and people have to be checked when entering though they may sometime not be checked when leaving as long as there is no suspicion of having carried away anything from the market.
Nonetheless, the above scenario is different from the government. In the government, there is nothing like free entry and exit. This is because government deals with the public interests and administration of public resources and because of that a public servant or public official must be vetted before entering and must also be screened before leaving to ensure that he or she has not taken with him or her public property.
In summary, the politicians of South Sudan from Juba downwards to all State and county levels must learn the fact that resignation must be done properly by following right procedures through right channel if it is to be considered resignation. They must learn the fact whereas they have freedom to choose either to work with the government or not, they have a duty to use their freedom within the confine of the law.
The law is that resignation must be in writing and directed to the competent authority but not to the media. The politicians can only resign through media if he or she is denied resignation without any reason and even in such cases, they have a right to go to court not to media to seek for remedy because the government does not have any right to force a citizen of South Sudan do a work he or she does not want to do.
Therefore, the resignation of Education Minister of Gok State, Hon. John Marik Makur is not resignation because it was not done in accordance to the law. All politicians and civil servants must read this article to understand that in order to resign proper procedure for the resignation as discussed in this article must be followed.
NB//: the Author is South Sudanese Lawyer residing in Kampala Uganda and can be reached through: +256783579256; or juoldaniel@yahoo.com
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