Observation (CEACR) - adoptée 1991, publiée 78ème session CIT (1991)

1. In comments made since 1967, the Committee has noted that under section 32 of the Civil Service Act, 1960, the President may dismiss or remove any civil servant if he is satisfied that it is in the public interest to do so and that under regulation 60(1) of the Civil Service (Interim) Regulations 1960, there shall be no appeal against a decision of this sort which is taken or confirmed by the President. Accordingly, the Committee has requested that measures be taken, both as regards legal grounds for dismissal and regarding channels of appeal so as to ensure that civil servants are not discriminated against on any of the grounds covered by the Convention. For many years, the Government has reiterated that the question of civil servants' right of appeal was being studied by the Public Services Commission and the Attorney-General's Office.

The Committee now notes the statement in the Government's most recent report that the Constitution is the supreme law of the country and that any other law found to be inconsistent with any provision of the Constitution shall, to the extent of the inconsistency, be void and of no effect. The Government also states that in view of the constitutional provision which safeguards the liberty of the individual, a dismissed civil servant may seek redress from the courts. The report indicates that there are cases relevant to this matter, notably those of Sallah vs. the Attorney-General 1970 (already referred to by the Government in the discussion on this matter by the Conference Committee in 1983) and Owusu Afriyie vs. State Hotels 1977. The former case concerned a civil servant (who was one of 560 dismissed public officers) whose dismissal was annulled by the court. In respect of the latter case, the report indicates only that the dismissed plaintiff sued in the High Court and won her case.

In the absence of copies of the decisions cited and of any indication as to the particular terms of the constitutional provision referred to by the Government, the Committee is unable to ascertain whether dismissed civil servants are guaranteed adequate channels of appeal. The Committee recalls, in this regard, that the 1979 Constitution (which was suspended by the National Defence Council (Establishment) Proclamation 1981) was formally abrogated by section 66(1) of the Provisional National Defence Council (Establishment) Proclamation (Supplementary and Consequential Provisions) Law. (PNDCL Law 42 of 1981.) However, even if a right of appeal were guaranteed under the Constitution, that cannot be considered to be sufficient in itself to guarantee equality of opportunity and treatment under the Convention. The problems often encountered in remedial procedures - such as the cost, the difficulties with the burden of proof, the fear of initiating proceedings alone and that of exposure to reprisals - may effectively deter many civil servants from pursuing this course. Indeed, the Committee considers it significant that apparently only one civil servant out of 560 dismissed public officials sought to bring an action before the courts. Accordingly, it is of paramount importance that the Government take steps to amend without delay section 32 of the Civil Service Act 1960 to ensure that civil servants not be subject to discrimination concerning their dismissal or removal from employment on the grounds of race, sex, religion, political opinion, national extraction or social origin. In addition, the Committee urges the Government to amend regulation 60(1) of the Civil Service (Interim) Regulations 1960 to guarantee civil servants the right of appeal in all cases of dismissal or removal from employment.

2. In its previous comments, the Committee had noted the Government's statement in its report that steps were being taken to reconstitute the "National Advisory Committee on Labour" to finalise examination of the Committee's outstanding comments. The Committee also recalled the indication given by the Government to the Conference Committee in 1986 that the "National Labour Advisory Committee" had been reconstituted in July 1985, and was examining outstanding comments of the Committee. The Committee notes that the Government has not provided any further information on this matter. Accordingly, the Committee recalls the obligations of the Government under Article 3(f) of the Convention to indicate in regular reports, the action taken in pursuance of a policy to promote equality and eliminate discrimination; and hopes that the Government will provide the details called for in a direct request which the Committee is again addressing to the Government.