AXUM POLYTECHNIC COLLEGE

Occupation: Document Authentication and Registration (Level - III)

Module title: Complying with Legislation in the Public Sector

Lo1: Identify legislative requirements

1.1. Work place legislation and guidelines

Ethics has long been a controversial area of study in the professions of law, politics, philosophy,
theology and public administration, and other study areas. Some practitioners, however, will
dismiss any study or theory of ethics as not pertinent to their work, preferring instead to rely on
laws, personnel manuals and job descriptions to define the limits of public sector responsibilities.

Now seems to be public administrators exercise substantial discretion (decision-making power)

on their own, discretion that affects peoples’ lives in direct, lasting, and sometimes profound
ways. In addition, there can be reasons to question the legitimacy of the rules and the policy
decisions that public administrators are implementing.

Administrators and bureaucrats cannot avoid making decisions, and in doing so they should
attempt to make ethical decisions. Administrators have discretionary powers that go beyond the
manuals, orders, job descriptions and legal framework of their position and duties, and
professional ethics will have to come in as guidelines, in addition to the formal regulations.
Administrators should therefore seek a broad and solid understanding of ethical theories and
traditions, and look for methods for thinking about the ethical dimensions of their decision-
making.

Accountability

 Accountability is one of the fundamental principles of the FDRE constitution. Within a

broad system of accountability under which Ministers are accountable to Parliament.
 all public sector employees have an unequivocal obligation to act both within the letter
and the spirit of the law
 The nature of this accountability will vary according to the nature of the power

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  Public sector employees - whether working in teams or individually are accountable for
the achievement of results.

Transparency

Transparency is openness of information. The concept of transparency can be defined as a

principle that allows those affected by political and administrative decisions to know not only the
basic facts but also the principles, mechanisms and processes leading up to a decision.
Transparency is the principle of public access to information, accessible to all relevant
stakeholders, in a timely and reliable way.

Transparency is closely connected to accountability, as transparency is a prerequisite for

accountable government.

Fairness

Fairness is another duty or ethical obligation of democratic rule and of the public sector. Fairness
is justice, both in terms of equality for the law and in terms of distributive justice. However,
Kinchin agrues that “fairness” is perhaps the most central, yet frustratingly vague principle of an
effective public sector code of ethics, and that it is a difficult concept to define.

Impartiality is a core concept of fairness; impartiality is a principle of justice holding that

decisions should be based on objective criteria, rather than on the basis of bias, prejudice, or
favour.

Justice is another core quality of fairness; both in terms of equality for the law and in terms of
distributive justice. Equity is a similar concept that is based essentially on the idea of social
justice and fairness; equity is the idea that all people have the same rights and the same access to
resources. It refers to the fair distribution of goods, services or other treatment. Equity strategies
and policies are typically formed around given populations (e.g. groupings related to age, class,
disability, ethnicity, gender) and are seen as socially and ethically desirable.

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Public Integrity

Public integrity refers to the consistency of actions, values, methods, measures and principles of
a public agency. Integrity may be seen as the quality of having a sense of honesty and
truthfulness in regard to the motivations for one's actions.

 first and foremost, public sector employees respect the rule of law
 they act honestly in every aspect of their work and are open and transparent when
making decisions or providing advice
 public sector employees perform their official duties and arrange their private affairs in
such a manner as to ensure that public confidence and trust in the integrity
 Decisions are always made and actions taken in the public interest. where there is a
conflict between the private interest and official duties of an employee the matter must be
resolved in favour of the public interest

Recruitment and Promotion

No institution can be expected to perform with professionalism in the absence of qualified and
motivated personnel. One of the most destructive features of corruption is when people are
appointed to public service based on their connections rather than on their capabilities.

The institutional arrangements for selecting, recruiting, promoting and dismissing public servants
are central to the proper functioning of the public sector and can best be provided through
legislation. A public service whose members are appointed and promoted based on merit will be
far less susceptible to corruption than one based predominantly on political and personal
connections. Where positions have been obtained through powerful connections, the loyalty is to
the connection, not to the institution to which the person has been appointed.

A merit-based public service presents numerous advantages: First, candidates are judged against
verifiable criteria that can be checked if breaches are suspected. Second, office holders have an
incentive to perform well. Third, politically appointed civil servants may be more inclined to
break the rules in order to maximize their personal gains in the short time they expect to be in
office. Four, civil servants owing their positions to their own capabilities as well as to clear and

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verifiable criteria, will feel accountable towards the state that employs them rather than towards
the government of the day.

However, a purely merit-based civil service may have to be varied to accommodate affirmative
action programs consistent with democratic practices. For example, such programs may ensure
that minorities are fairly represented in the public service, and redress gender and geographical
imbalances. Furthermore, a merit-based civil service is no guarantee against corruption.

Conflict of Interest

A conflict of interest is a situation in which someone in a position of trust and responsibility,

such as a politician, civil servant, executive or director of a corporation or a medical research
scientist, lawyer or physician, has competing professional and personal interests. In other words,
a conflict of interest arises when a public sector employee or official is influenced by personal
considerations when carrying out his or her job. Such competing interests can make it difficult to
fulfil his or her duties impartially.

Some of the most common forms of conflicts of interests include self-dealing, in which public
and private interests collide, for example when a public official holds private business interests.
It includes outside employment, in which the interests of the “private” job can contradict the job
as a public servant. It also includes family interests, for instance when a spouse, child, or other
close relative is employed (or applies for employment) or where goods or services are purchased
from such a relative or a firm controlled by a relative. Besides, it includes gifts from friends who
also do business with the civil servant receiving the gifts.

Identifying Conflicts of Interest

Most conflicts of interest are obvious: Public officials who award contracts to themselves,
members of their family or to their friends; public officials who personally hold or whose close
relations hold shares in companies subject to their regulation, with which they are contracting or
to which they are granting licenses, etc. These conflicts require no explanation.

Conflicts of interest situations cannot be avoided. It is inevitable that, from time to time, personal
interests will come into conflict with work decisions or actions. For these to be identified from

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the outset is important if confusion and misunderstandings are to be avoided. The following
checklist can help individual public servants identify situations where a conflict of interest is
likely to arise:
 What would I think if the positions were reversed? If I were one of those applying for a
job or a promotion and one of the decision makers was in the position I am in? Would I
think the process was fair?
 Have I received any benefit from someone who stands to gain or lose from the
organization’s decision or action?
 Am I a member of any association, club or professional organization, or do I have
particular ties and affiliations with organizations or individuals who stand to gain or lose
from the organization’s consideration of the matter?
 If I do participate in assessment or decision making, would I be worried if my colleagues
and the public became aware of my association or connection with this organization?
 Would a fair and reasonable person perceive that I was influenced by personal interest in
performing my public duty?
 Am I confident of my ability to act impartially and in the public interest?

Managing and Preventing Conflict-of-Interest Situations

When someone considers that they may have a conflict of interest, what should they do? The
first step should be to place the potential conflict on the record and seek the guidance of a
superior or an ethics adviser, if one is available. Clearly, some conflicts will be so minor as not
to warrant anything more than the situation being recorded and made known to others who are
participating in the decision-making process.

For example, an official might hold such a small number of shares in a company that their value
could not possibly be affected significantly by the outcome of the particular matter under review.
In such a case, the others involved may feel comfortable with the official’s continued
participation in the decision making process.

The following checklist can be used to assess whether a disclosed conflict of interest might
require other public officials to ask the person in question to stand aside:

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  What is the nature of the relationship or association that could give rise to the conflict?
 Is legal advice needed?
 Is the matter one of great public interest? Is it controversial?
 Could the individual’s involvement in this matter cast doubt on his or her integrity?
 How would this individual’s participation in the decision in question look to a member of
the public or to one of the organization’s potential contractors or suppliers?
 What is the best way to ensure impartiality and fairness and to protect the public interest?

Other strategies that an organization or government can adopt to avoid compromising, or

appearing to compromise, its integrity include to keep full and accurate records of its decision-
making processes; to ensure openness by making public accurate information about the
organization’s processes, decisions and actions; and to ensure that the final decision can be
substantiated (especially when there is a risk of conflict of interest or a perceived conflict of
interest).

Service, respect and courtesy

 public sector employees recognize that on behalf of the government, they hold in trust a
duty to provide quality services to the citizens
 respect for human dignity and the value of every person is at the heart of every action
employees take and every decision employees make
 in dealing with citizens, public sector employees act impartially, fairly and equitably and
with genuine respect for their rights as citizens.
 public sector employees demonstrate their commitment to serve Ethiopians by
continually striving to improve the quality of service and by responding to changing
needs through teamwork, innovation and creativity
 Public sector employees understand the importance of collaboration and information
sharing between agencies where it is appropriate to do so.
Handling Official Information
By virtue of their duties, public sector employees frequently deal with and/or are aware of
information about issues, facts and circumstances that they know, or should realize, needs to be
treated as confidential public sector employees will not disclose official information acquired

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through the course of their employment other than is required by law or where appropriately
authorized in the agency concerned.
Public sector employees will not misuse information gained in their official capacity, including,
but not limited to, the following types of circumstances:
 purchasing shares or other property on the basis of confidential information about the
affairs of a proposed Government action
 seeking to take advantage for personal benefit or gain or for the personal benefit or gain
of another
 Public sector employees will maintain the integrity and security of official information
for which they are responsible. Employees will also ensure that the privacy of
individuals is maintained and will only release information in accordance with relevant
legislation, policy or lawful and reasonable direction
Non-discrimination
An employee does not unfairly discriminate against any member of the public on account of
race, gender, ethnic or social origin, colour, sexual orientation, age, disability, religion, political
persuasion, conscience, belief, culture or language.
The Public Service serves all individuals and communities, irrespective of who they are in
Ethiopia. Each member of the public has the constitutional right to be treated with dignity.

Example 1: An employee may suspect that a member of the public requiring to be served is, for
instance, gay. Even though this might be totally unacceptable from the employee’s personal
point of view, he or she is nevertheless expected to provide the same level of professional service
that would be rendered to any other member of the public.

Relationships among Employees

 An employee co-operates fully with other employees to advance the public interest
 An employee executes all reasonable instructions, provided these are not contrary to the
provisions of the Constitution and/or any other law
 An employee refrains from favoring relatives and friends in work-related activities and
never abuses his or her authority or influences another employee
 An employee is committed to the optimal development, motivation and utilization of his
or her staff and the promotion of sound labor and interpersonal relations

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  An employee refrains from party political activities in the workplace

Whistle blowing

Whistle blowing means calling attention to wrongdoing that is occurring within an organization.
There can be special arrangements like “supervisor” within the organization or office, or a
specially created inter-departmental hotline for certain issues, like corruption, in order to
facilitate whistle blowing. A whistle blower is sometimes called an “informant”. There are four
ways to blow the whistle:

 Reporting wrongdoing or noncompliance law to the proper authorities, such as a

supervisor
 Refusing to participate in workplace wrongdoing
 Testifying in a legal proceeding
 Leaking evidence of wrongdoing to the media

Of course, whistle blowing goes on in the private sector, but because government is supposed to
be open and transparent, full disclosure of unethical or illegal behavior in the public sphere is
particularly important. Not all of the problems in the public sphere are, however, generated
within the government organization; outside individuals can participate in and even breed for
instance corruption, fraud and embezzlement.

Whistle blowing has to do with ethics because it represents a person’s understanding, at a deep
level, that an action his or her organization is taking is harmful; that it interferes with people’s
rights, is unfair, or detracts from the common good.

Then there are suggestions about how to encourage internal whistle blowing in an institution.
Some of these measures include the establishment of an agency internal policy about reporting
illegal or unethical practices (a policy which should be open, transparent, well published and
include formal mechanisms for reporting violations), clear communications about the process of
voicing concerns, such as a specific chain of command, or the identification of a specific person
to handle complaints. Then, there should be clear communications about bans on retaliation.

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Furthermore, whistle blowing should get endorsement from the top (senior officials like the
mayor, manager, council members, boards), who should state their commitment to the process.
Elected and administrative leadership must encourage ethical behaviour and hold everyone
within the organization to the highest standards, including the disclosure of activities that would
have a negative impact on the public’s business.

Lastly, there should be investigations and prompt following up on all allegations of misconduct.
Report on these investigations to the council or board.

However, whistle blowers in the public sector often face the unique problem that their disclosure
may constitute a crime. This can create an ethical dilemma when the ongoing misconduct is
severe and there is no reasonable prospect that the abuse will end absent blowing the whistle.

If this process does not produce results, if wrongdoing is not being addressed within the
organization, it may be time to move outside; to someone with authority over the agency, the
legal system, or the press

On the other hand, a leaker must determine if the conduct he or she is exposing represents actual
wrongdoing or if it is simply represents a policy disagreement. Of course, much of the public’s
business should be debated in public, and speaking up about disagreements on most issues is not
only acceptable but also desirable. Closed-door sessions, however, are secret for a reason.
Exposure of sensitive information about a hiring or firing decision may needlessly cause harm to
an individual. As much as council or board members’ views may differ on these issues, they
should remain secret if the problem does not rise to the level of misconduct.

1.2. Application of legislative requirements

As far as the law is clear the legislator is presumed to clearly say what it intended and also
intended what it clearly said. Hence, there is no need to search for the intention of the legislator
as it is clear from the law itself.
The supremacy of the FDRE constitution
A federal constitution is a covenant of the union by which federal relationship is established. The
federal constitution, being the source of powers of both the central and the regional governments,
is believed to be the supreme law. The supremacy of the constitution and its rigidity are the

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essential characteristics of the federal constitution and they are also the manifestations of the idea
of federalism itself.

The 1994 FDRE Constitution in its Art 9(1) states that the Constitution is the supreme law of the
land. It reads as “any law, customary practice, and act of an agency of government or official act
that contravenes the Constitution is invalid.” In this Article, the phrase “any law” is used to cover
all laws, which are now in force both at the central and at the regional levels. Therefore, the
Constitution of the FDRE is superior to all federal and state laws including the state
constitutions. This Constitution is binding on all the authorities of both the federal and of the
regional states [Art 9(3) of the Constitution]. Hence, all acts made by their authorities in
contravention of the supreme law are invalid.

An employee respects and protects every person’s dignity and his or her rights as contained in
the Constitution.

Federal Legislation and their hierarchy

Position of federal legislation on the ladder of hierarchy is below the federal Constitution.
Primary legislation normally refers to the enactments made by the supreme legislative organ of
the country to which it belongs. Therefore, in our case, federal statutes (proclamations) enacted
by the House of Peoples’ Representatives, which is the supreme legislative organ of the federal
government [Art 50 (3) of the Constitution] fall under this group of legislation (primary
legislation).

In addition to this, there are certain circumstances in which the primary legislation may include
laws that are issued by the executive (subordinate) authorities. However, in such a case, for those
laws to be categorized under the above group of legislation, the authorities enacting them should
be empowered to do so by the supreme law (constitution). In connection with this, the FDRE
Constitution confers the Council of Ministers the power to proclaim a decree of emergency [Art.
93 of the Constitution]. Hence, such decrees passed by this organ may also fall under the said
category of laws.

Nevertheless, the fact that both the proclamations and the decrees of emergency belong to the
same group of law does not mean that they have equal authority in the hierarchy of laws. This is

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because, as a rule, in order to say that legislation made by different authorities are on equal
footing in hierarchy; their makers should be on the same position in the power order. However,
this is not true in the case under consideration. As said shortly before, the House of Peoples’
Representatives is the supreme authority of the federal government. As a result, the federal
statutes (proclamations) enacted by it are superior to all other laws made by the federal
authorities. Accordingly, the Council of Ministers, being a federal authority, is subordinate to the
House of Peoples’ Representatives and thus the laws made by it are inferior to the proclamations.

However, the status of the decrees of emergency proclaimed by the Council of Ministers is
exceptions to what is said above. This is because, the Constitution empowers the Council of
Ministers to suspend even democratic and political right provided there under through the
decrees issued by it in time of emergency. Therefore, for stronger reason, it is possible to say that
the decrees of emergency proclaimed by the Council of Ministers can repeal the proclamations.

1.3. Advice when conflicting legislative directives are found

General
All laws must be sufficiently clear and reasonably formulated to address their purposes. Laws
should be clear not only to the lawyer but also to the layperson. However, this may not be
achieved all the time. There may be certain situations that give raise the need to give meaning to
a law.

Interpretation is the art or process of discovering and expounding the intended signification of
the language used, that is, the meaning which the authors of the law designed to convey to
others.
Words are the only means for all legal instruments through which the intention of the lawmakers
can be expressed. Because of the inherent nature of language, words are susceptible to ambiguity
and vagueness.

Further, the scope of human knowledge are very much limited, thus, the lawmakers cannot enact
a law that will regulate every microscopically detail of human relation. In order to remedy such
deficiencies, the legislature usually uses general words deliberately so as to enable certain legal
instrument to accommodate new circumstances that have not been contemplated by the
legislature at the time of law making. The vagueness created by the legislature leads to more

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room for interpretation there by enabling the court to handle new circumstances within the ambit
of the general policy consideration of the statutes.

Rules of interpretation

There are rules of interpretation of statutes that developed through time.

A. The golden Rule of Interpretation: It is a grammatical interpretation for ascertaining

the true intention of the legislature. The golden rule of interpretation is that “if the words
of the statute are in themselves precise and unambiguous, then no more can be necessary
than to expound words in their natural and ordinary sense. The words themselves alone
do, in such cases, best declare the intention of the law-giver”

B. The Ejusdem Generis Rule: According to ejusdem generis rule, a sweeping clause in a
statute which says “all other articles whatsoever” may be interpreted to mean only
articles of the same genus or species as those expressly dealt with by the statue.

C. Logical Interpretation: The logical interpretation has to be used when grammatical

interpretation fails in ascertaining the meaning of the statue. If the words used in the
statute are ambiguous and the true intention of the legislature is doubtful, logical
interpretation may be resorted to in order to prevent the law from being misused. Thus,
there can be two situations in which it is permissible to depart from the ordinary and
natural sense of the words of the statute; namely, (1) it must be shown that the words
taken in their natural sense lead to some absurdity, or (2) some clause of the statute is
inconsistent with, or repugnant to the enactment in question.

D. Liberal Interpretation: Liberal interpretation may be either restrictive or extensive. The

restrictive interpretation is applied to penal and fiscal legislations. These legislations
impose restraints on the liberty of a person or on enjoyment of property. In such cases,
Courts are not allowed to interpret these legislations, in a manner which impose a greater
burden on the subject than warranted by literal meaning of the legislation. In extensive
interpretation, on the other hand, the words are given a wider meaning.

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 E. Historical Interpretation: At times when the language used in a legislation gives no
clue to the intention of legislature, courts may consider the historical circumstance
attending the local enactment. But historical interpretation cannot be stretched too far. In
several cases, it becomes necessary to take the help of preamble to know the real
intention of the legislature. Preamble is a key which opens the gate way to the thoughts of
legislators while framing a particular legislation.

Inconsistency or contradiction in law

Two provisions of the same or different laws may sometimes be inconsistent or contradictory. In
such a situation, which of the provisions should be applicable becomes the issue that has to be
decided by using rules of interpretation. There are three ways to decide this issue.

Firstly, the hierarchical position of the two laws must be seen. If they exist in different hieratical
position like one in constitution and the other in primary or subordinate legislation, the rule
applicable is the higher law prevails over the lower law.

Secondly, the two provisions may exist in the same hierarchical position cannot serve to decide
the issue, because both are in the same hierarchical position. In such a situation their effective
date i.e. the date on which they entered in to force must be considered as a reference. Because,
the rule is that the later law prevails over the former law (exposterior derogate priori). In other
words, the new or recent law must be applicable and the old law will have no effect for it is
assumed that the legislator who made a new law that contradicts with an old law of the same
hierarchical position intended to repeal the old law by implication.

Finally, both the contradicting provisions may sometimes exist in the same law like for instance
in the same code which implies that neither hierarchy nor effective date can be used to decide the
issue because they are in the same hierarchal position even in the same law and also have the
same effective date. The remedy for such a problem is referring to the nature of the laws whether
one is general and the other is special rule in which it is usually the case. If one is in the general
rules and the other is in the special rules lex special derogate generalis (i.e. special Rules prevail
over general rules).

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