Open Letter to the Attorney-General and Minister of Justice Regarding the Illegal Implementation of Tenure Rule for Directors by the Head of Service

The Head of the Civil Service of the Federation, Dr. Folashade Esan, recently announced the introduction of new Public Service Rules (PSR) and directed all Ministries, Departments, and Agencies of the Federal Government to implement them immediately. While the new PSR has some innovative provisions, it also reintroduced the eight-year tenure rule for Directors and Permanent Secretaries. The issue lies not with the tenure rule itself, but with the manner in which it is being implemented by the Head of Service. The rule is being applied across the entire public service, including parastatals that have their own establishment and governing laws. This retrospective implementation is unconstitutional.

It is important to clarify that the public service consists of staff from core Ministries (civil service) and staff from parastatals, which are government organizations established by Acts of Parliament. These organizations have their own laws that dictate the grounds for employee disengagement and the procedures that must be followed. Courts have consistently emphasized the need for strict adherence to these laws when terminating employees. The concept of tenure rule as a ground for compulsory retirement is not found in these laws. Therefore, the Public Service Rules should not supersede or override an Act of Parliament. Excluding institutions with their own establishment and governing laws from the application of the tenure rule is crucial to avoid unnecessary litigation and expenses.

A notable case that highlights this issue is the Comptroller General of Customs and Others v. Comptroller Abdullahi B. Gusau, where thirty-two Comptrollers of Customs were compulsorily retired based on a new policy document. The Court of Appeal and the Supreme Court nullified the policy in 2017, declaring it contrary to the governing law.

Even when Governing Councils or Management Boards are eventually constituted for parastatals, they must still adhere to the laws that establish and govern these institutions. Relying on inconsistent policies would only lead to prolonged legal disputes.

The new PSR defines "Public Service of the Federation" as the service defined in section 318 of the Constitution. However, section 318 of the Constitution does not mention the Public Service of the Federation. The Constitution only defines the Public Service of a State. The Public Service Rules cannot create something that the Constitution did not establish. Similarly, the definition of "Public Officer" in section 26 of the Code of Conduct Bureau and Tribunal Act does not envision a public service with one rule that holds superiority over the constitution and duly passed laws. The Attorney-General must provide proper guidance to the government. There is no such thing as the Public Service of the Federation.

The tenure rule applies to all staff on grade level 17 or its equivalent, including senior medical and health workers. Implementing this rule in the health sector would worsen the brain drain issue. It is important to remember that many of the non-medical and health workers affected are experienced professionals in their own right. Selective application of the rule would send a message that they are expendable.

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Retrospective implementation of a newly introduced rule raises questions. Why should the rule apply to those who were directors before it came into force? The Attorney-General should provide guidance on the proper application of the rule.

The Head of Service, Dr. Folashade Esan, is also relying on Rule 120243 to compulsorily retire innocent public servants who have not committed any offense and have not reached the mandatory retirement age. This rule states that officers must give three months' notice before retirement. However, these directors are being coerced into giving notice and are being shut out of their offices without just cause.

The argument that the tenure policy will create opportunities for other public servants to become directors is unfounded. Not everyone will reach the peak of their career in the workplace, and it is unfair to suddenly dismiss innocent directors to make way for others. This scenario was not considered when they joined the service.

It is worth noting that only the tenure rule from the Oronsaye Report on Civil Service reform is being vigorously implemented. The haste and overzealousness in implementing the rule, as seen in the memo from the Director of Administration of the Federal Ministry of Finance, is concerning.

Claims that the majority of the directors have spent 15 to 18 years on the post are fallacious. In reality, most affected directors have an average of three years left until retirement and have only been on the post for eight years. If this claim were true, a more robust system like the rotation of headship of departments in academia could be adopted. This would allow directors to relinquish their positions without losing their jobs. It is important to remember that these directors are career public servants with expectations and families. Shortening their pensionable years and depriving them of maximum retirement benefits is unjust.