Sexual Harassment -The Labour Court has set aside the dismissal of former Immigration Department officer Herbert Admire Makani, ruling that the Civil Service Commission (CSC) mishandled his disciplinary process and misapplied the law in its determination.
Makani, who had served in the department for years, was dismissed in August 2021 after being found guilty by the CSC of allegedly sexually harassing his former colleague, Fortune Nyamuremba, through repeated phone calls and text messages between 2011 and 2014. He was also accused of engaging in conduct deemed indecorous under the Public Service Regulations.
However, Justice Bridget Chivizhe, presiding over the appeal, found significant procedural irregularities and glaring gaps in the evidence presented against Makani. Her ruling sharply criticised the manner in which the disciplinary proceedings were handled, raising questions about the fairness and legality of the CSC’s approach.In her judgment, Justice Chivizhe noted that the Disciplinary Committee had failed to clearly connect the alleged incidents to specific charges under the Public Service Regulations, 2000. The allegations could have been assessed under paragraph 4, which relates to improper conduct, or paragraph 7, which deals with misconduct of a sexual nature — yet the committee did not make any distinction between the two.
“The Disciplinary Committee merely pronounced the appellant guilty and recited the alleged facts without properly relating them to the elements of the charge,” she said. “Such a superficial approach undermines the credibility and lawfulness of the decision.”
Labour Court Overturns Immigration Officer’s Dismissal in Sexual Harassment Case, Citing Procedural Flaws
The Labour Court also found that the CSC misrepresented Makani’s own testimony. In its ruling, the disciplinary body claimed Makani had not denied contacting Nyamuremba. However, official records from the hearing showed that he had “categorically denied” making such calls or sending messages, insisting he had “never phoned her.”
Justice Chivizhe stressed that such a mischaracterisation of evidence was a serious flaw, particularly in a case where the allegations were heavily reliant on testimonial accounts.Perhaps most damaging to the CSC’s case was its failure to produce concrete proof of the alleged misconduct. No phone records, text messages, or even the relevant phone numbers were tendered as evidence during the disciplinary proceedings.
“In the absence of such evidence, the Disciplinary Authority could not reasonably or lawfully conclude that the elements of the offence were satisfied,” Justice Chivizhe ruled.
She further criticised the Commission for effectively shifting the burden of proof onto Makani, contrary to legal principles. “He who alleges must prove… The onus was on the respondent to establish the appellant’s guilt,” she reminded.
In reinforcing her point, Justice Chivizhe cited the precedent set in the Kazingiingizi Dzinoruma case, where the court had warned that decisions made without clear and reasoned justifications risk being seen as arbitrary or capricious. She said the CSC’s approach mirrored the same failings, lacking the structured legal reasoning required in disciplinary matters.
As a result of these findings, the Labour Court allowed Makani’s appeal with costs. The court ordered that he be reinstated to his former position without any loss of salary or benefits dating back to the date of his dismissal in August 2021.
If reinstatement proves impossible for practical reasons, the CSC has been directed to pay Makani damages equivalent to what he would have earned, with the amount to be agreed upon by both parties within 30 days.
The judgment is being seen as a warning to government departments and the Civil Service Commission to ensure strict adherence to due process and evidentiary standards when handling disciplinary cases. It underscores the need for clear linkage between charges and facts, proper evaluation of testimony, and the presentation of concrete evidence before taking punitive action.
While the ruling does not make a finding on whether the alleged acts occurred, it sends a strong message that even serious allegations such as sexual harassment must be proven in accordance with established legal procedures.
For Makani, the decision marks a significant personal victory after nearly four years of contesting his dismissal. For the CSC and other government agencies, it serves as a high-profile reminder that procedural fairness and proper application of the law are non-negotiable in disciplinary processes.
Source- Newsday
