What Penalties Can a Leader Face for Misconduct in Office?

The Leadership Code does not fine leaders or send them to prison. It removes them from office. That is the design: the Code protects the office, and the primary remedy is to take the office away.

Dismissal is the default outcome

Section 28(1)(g)(ii) of the Constitution requires independent tribunals, subject to section 28(1A), to recommend that a person found guilty of misconduct in office be dismissed from office or position.

Under section 28(2), where a tribunal makes such a recommendation, the appropriate authority shall act in accordance with it. The Head of State (for elected leaders) or the appointing authority (for others) has no discretion to soften the result.

The only exception — section 28(1A)

“No serious culpability” is a finding about the leader — the nature of the breach, whether it was deliberate, whether there was concealment, what benefit was obtained, whether the failure was administrative rather than venal. The second limb is a finding about the public interest, and it is independent: a tribunal may find little personal culpability and still conclude that the office cannot be retained.

Where both limbs are made out, the tribunal may recommend some other penalty provided for by law — typically a fine, or a reprimand, as prescribed by the Organic Law on the Duties and Responsibilities of Leadership.

Section 31 — the three-year bar

A leader dismissed under the Division for misconduct in office is not eligible:

• for election to any elective public office;
• for appointment as Head of State, or as a nominated member of the Parliament; or
• for appointment to a provincial legislature or provincial executive (including as head of a provincial executive) or to a local-level government body,

for three years after the date of dismissal. Where there is doubt whether an office falls within the bar, section 31(2) makes the decision of the Ombudsman Commission final.

The bar attaches to dismissal. A leader who receives a lesser penalty under section 28(1A) is not disqualified by section 31.

Suspension before any finding

Section 28(4) allows an Organic Law to provide for suspension from office pending investigation. Suspension is not a penalty and implies no finding, but its practical effect on a leader mid-term is substantial — which is why suspension decisions are themselves litigated.

Consequences outside the Code

Leadership proceedings sit alongside, not instead of, the ordinary law. Section 28(5) makes that explicit in both directions: leadership proceedings are no bar to other proceedings, and other proceedings are no bar to leadership proceedings. The same facts may therefore give rise to:

• criminal charges under the Criminal Code (Chapter 262) — for example misappropriation, official corruption or abuse of office;
• civil recovery of misapplied public money;
• investigation by the Independent Commission Against Corruption;
• disciplinary action under the leader’s own conditions of employment, where they are an appointed officer.

The separate section 23 sanctions

Section 23 is not part of the Leadership Code, but it belongs in the picture. Where a Constitutional Law prohibits or restricts an act or imposes a duty and no other enforcement is provided, the National Court may impose imprisonment of up to ten years or a fine of up to K10,000, or — in the absence of any other equally effective remedy — order compensation by the person or governmental body in default, and may make any further order it thinks proper.