Sections 25 and 26 of the Police Act 1998 govern what happens once a serious charge is found sustained.
Section 25 — the Commissioner decides
(1) After the investigation, the disciplinary officer shall furnish to the Commissioner a report advising whether in his opinion the charge has been sustained, and where sustained, what punishment is recommended.
(2) The Commissioner, after considering the report, may — where the disciplinary officer is of opinion that the charge has been sustained and the Commissioner concurs — impose a penalty (whether or not that penalty is recommended by the disciplinary officer) specified in section 26.
The Commissioner must concur in the finding. A penalty may be imposed only where the disciplinary officer found the charge sustained and the Commissioner agrees. The Commissioner cannot substitute a finding of guilt for a “not sustained” report — the only route is a referral to a second officer under section 25(4), whose recommendation is then accepted without further formality.
The recommendation on penalty does not bind. The words are express: whether or not that penalty is recommended. The Commissioner may impose a heavier penalty than recommended, including dismissal.
Section 26(1)
(a) a fine not exceeding K200.00;
(b) reduction of the member’s salary;
(c) forfeiture of not more than four weeks’ pay;
(d) reduction of the member to a rank having a lower classification, and to a salary within that classification;
(e) in addition to or instead of (d), transfer of the member to other duties;
(f) in addition to or instead of (d) or (e), transfer of the member to some other locality;
(g) dismissal of the member from the Force.
| Minor — s 22 | Serious — s 26 | |
|---|---|---|
| Fine | Up to K40 | Up to K200 |
| Forfeiture of pay | Up to one week | Up to four weeks |
| Confinement to barracks | Up to 14 days | Not available |
| Reduction of salary or rank | Not available | Available |
| Transfer | Not available | Duties or locality |
| Dismissal | Not available | Available |
| Combination | “Any of the following” | “Any one or more” |
The penalty of transfer to some other locality under paragraph (f) shall not be imposed on a member of the Community Auxiliary Police or on a Special Constable.
That follows from what those members are. Community Auxiliary Police serve their own communities as volunteers; transferring one elsewhere would be meaningless.
Retraining — sections 25(5) to (7) and 26(2)
Where the Commissioner imposes a penalty under section 26(1) other than dismissal, the Commissioner may in addition direct that the offending member complete a course of retraining.
Section 25(6) provides that a retraining course comprises such training and instruction as the Commissioner determines, and may include an examination or examinations.
Section 25(7) then provides that where the member satisfactorily completes the course and passes any examinations within such time as the Commissioner allows —
- (a) a fine or forfeiture of pay may, in the Commissioner’s discretion, be remitted in whole or in part, and the proportion remitted repaid to the member; and
- (b) any reduction in rank or salary may be reversed in whole or in part, from the date of satisfactory completion.
This is a genuinely rehabilitative provision, and unusual in a disciplinary code. It allows a member who has been fined, demoted or had salary reduced to earn back the position by retraining.
The corresponding obligation is enforced from the other side: section 20(1)(av) makes it a disciplinary offence to fail to comply with a direction for retraining imposed under section 25.
Sections 26(4) to (10) — notification and review
- Section 26(4). The Commissioner shall notify a member of a penalty imposed.
- Section 26(5). Where a penalty is imposed by a disciplinary officer, the member may apply in writing to the Commissioner for a review within seven days of notification, or such further time as the Commissioner allows.
- Section 26(6). The application may be delivered in person to a disciplinary officer, sent by ordinary post to the Commissioner, or delivered in an approved manner — and is deemed made on the day delivered or posted.
- Section 26(7). On review the Commissioner may confirm or annul the penalty, and the decision is final.
- Section 26(8). The Commissioner may direct that a penalty imposed by a specified rank of disciplinary officers not be executed until confirmed.
- Section 26(9). The power to confirm includes the power to increase or otherwise vary the penalty.
- Section 26(10). Delegation of the review is limited to a member of equal or higher rank than the disciplinary officer whose decision is under review.
Section 26(9) means a member seeking review of a reduction in rank may emerge with dismissal. That risk should be weighed before applying.
Note also that section 26(5) applies where the penalty was imposed by a disciplinary officer. Where the Commissioner imposed it under section 25(2), section 27 applies: the Commissioner’s decision on both guilt and penalty is final.
Fines are recovered under section 30 by deduction from pay, in instalments each not exceeding 25% of pay, and are paid into the Consolidated Revenue Fund.
Sources
- Police Act 1998 — ss 17, 20, 22–30
- Constitution — ss 37, 59
Before relying on anything here, read the current text of the Police Act 1998 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.