Division 11 of Part V of the Police Act 1998 governs how service in the Regular Constabulary ends.
Section 91 — the ages
(3) A member who has attained the age of 55 years, or before attaining that age has completed 20 years’ continuous service, is entitled to retire if he desires to do so — but may continue in the Force until he attains the age of 60 years.
(4) A member who continues after reaching that point —
(a) may be retired at any time before attaining the age of 60; and
(b) subject to subsection (6), shall retire on attaining the age of 60.
| Point | Effect |
|---|---|
| 20 years’ continuous service, whatever the age | Entitled to retire |
| Age 55 | Entitled to retire |
| Between that point and 60 | May be retired by the Commissioner at any time — s 91(5) |
| Age 60 | Shall retire |
| Beyond 60 | Only where the Commissioner finds special circumstances — maximum five years in aggregate, s 91(6) |
| Commissioner and Deputy Commissioners | Retire in accordance with their contract or conditions of appointment — s 91(1), (2) |
Section 91(4)(a) is significant. Once a member has reached 55, or completed 20 years’ service, they may be retired at any time by the Commissioner — section 91(5).
No cause is required, and no procedure is specified. Contrast section 55, which requires inquiry, written notice of the alleged failures, 14 days to respond, and severance pay of one to three months’ salary.
So a member who has reached the retirement entitlement holds a materially weaker position than one who has not, and section 91 provides no severance.
Unless the Commissioner otherwise approves, a member is not entitled to retire during a period of suspension.
The provision prevents a member from retiring to avoid the completion of disciplinary proceedings. A similar restriction applies to resignation under section 93(2), where a period of suspension is not counted towards the notice period.
Section 92 — retirement for infirmity or incapacity
Where a member appears to the Commissioner, after full investigation of the circumstances, to be, by reason of mental or bodily infirmity or for any other reason, unfit to discharge or incapable of discharging the duties of his position efficiently, the Commissioner may —
- retire that member from the Force; or
- transfer that member to other duties of equal or lower rank and salary.
“After full investigation of the circumstances” — the Commissioner cannot act on assumption.
Section 92(2) — the retirement or transfer shall not be deemed to be on account of mental or bodily infirmity unless it is so stated in the instrument effecting the retirement. That protects a member from an unrecorded implication of infirmity, and matters for pension and re-appointment purposes: section 44 provides for the re-appointment of members retired on account of mental or physical incapacity.
Note that transfer to lower rank and salary is available as an alternative to retirement — a less drastic outcome where the member can still serve in another capacity.
Sections 92(3) to (5) — the 400-day deeming rule
Where a member has been unfit to carry out his duties for a time or times which in total exceed 400 days in any continuous period of 37 months ending on the effective date, the member shall, unless the Commissioner otherwise directs, be deemed to be incapable of discharging the duties of his position efficiently — and the Commissioner shall notify the member accordingly.
Section 92(4). The rule applies notwithstanding that the lack of fitness may at different times have been due to different causes, and notwithstanding that on the effective date the member is fit to carry out his duties.
So unrelated illnesses aggregate, and present fitness is no answer.
Section 92(5). The “effective date” is the date on which the Commissioner notifies the member that subsection (3) applies. The 37-month window is measured backwards from that notification.
The safeguard is the words “unless the Commissioner otherwise directs”. The deeming is rebuttable, and the notification obligation gives the member the opportunity to ask the Commissioner to direct otherwise — for example where the absences arose from a single resolved condition, or from an injury on duty under section 79.
Sick leave entitlements are governed by sections 72 and 73, and there are separate provisions on illness due to misconduct (s 78) and leave for infectious disease contacts (s 77).
Section 93 — resignation
A member may resign —
(a) with the written consent of the Commissioner or a person authorised in writing by the Commissioner; or
(b) after giving three months’ written notice of the intention to resign.
Section 93(3): unless the Commissioner otherwise approves, a member who purports to resign otherwise than in accordance with subsection (1) is guilty of an offence.
Penalty: a fine not exceeding K500 or imprisonment for a term not exceeding three months.
That is one of the heavier penalties in the Act — higher than the K200 maximum fine for a serious disciplinary offence. Walking away from the Force without consent or notice is treated as a criminal matter, not merely a disciplinary one.
Section 93(2): unless the Commissioner otherwise approves, a period of suspension shall not be taken into account when calculating the three months’ notice.
A person who has resigned may later be re-appointed under section 45. On the end of membership generally, see section 148; pensions are dealt with in Division 12, sections 94 onwards.
Sources
- Police Act 1998 — ss 44, 45, 55, 72–79, 91–94, 148
- Constitution — s 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.