NIKUZE v. GOVERNMENT OF RWANDA

# NIKUZE v. GOVERNMENT OF RWANDA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-07-15 - Case/document no.: RADA 0016/13/CS - Collection: Supreme Court

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NIKUZE v. GOVERNMENT OF RWANDA [Rwanda SUPREME COURT – N° RADA 0016/13/CS (Nyirinkwaya, P.J., Mukandamage and Rugabirwa, J.) July 15, 2016] Administrative law – temporary suspension on service – to be sanctioned twice for one breach – it is the right for an employee to be informed about the faults he/she committed so that he/she presents he/her defense – the fact that an employee could be temporary suspended and then after she be automatically dismissed should not be considered as she was sanctioned twice for one breach because the temporary decision would taken for the job interest and to facilitate the investigation to be well conducted and also it is not necessary to defend herself about it because it is not a penalty – Law n° 22/2002 of 09/07/2002 on general statutes for Rwanda public service, article 66. Administrative law – temporary suspension on service – it is confirmed that an employee was unlawfully suspended on service when the period of six months exceeds without being reinstalled on job or be automatically dismissed – Law n° 22/2002 of 09/07/2002 on general statutes for Rwanda public service, article 65. Administrative law – unlawful dismissal – the effect for the fact that an employer would be reversed the sanction of dismissing automatically an employee on service – it is an unlawful dismissal when an employer reverses the sanction of dismissing an employee because the automatic expulsion began from when the public employee was informed about the decision of dismissing him/her – Law n° 22/2002 of 09/07/2002 on general statutes for Rwanda public service, article 90 and 122. Administrative law – unlawful dismissal – awarding the damages resulted from unlawful dismissal – the damages for unlawful dismissal are awarded in Court discretion – Decree law 30/07/1888 relating to Contracts or obligations, article 258 Administrative law – leave allocation – the employee would not be benefit the leave allocation in case he/she does not prove the evidence that he/she applied the annual leave and t his employer refused to grant it – Law n° 22/2002 of 09/07/2002 on general statutes for Rwanda public service, article 42, 43. Administrative procedural – the penalty forcing the execution – the Court will not charge the penalty forcing the execution to the party in case there is nothing demonstrating that he/she will not comply with what were ordered in judgment – Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 343. Fact : on 27 October 2005, Nikuze was engaged by the Minister of public service and labour(MIFOTRA) then after on 27 February 2009, Prime Minister suspended her temporary on service, then finally he was automatically dismissed on service on 12 April 2011 due to the faults she committed of distributing the public assets on high price, and the fact that she did not submit the report of procurement while she was a Procurement Officer. Nikuze applied administrative appeal to the Minister of MIFOTRA for requesting the cancellation of the decision which dismiss her on service and be given back her right she was deprive for nothing and be paid the salary she was not be remunerated during three years which

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she spent in provisional suspension, but he answered her that the decision should not be cancelled because she did provide the unreasonable explanation. Nikuze filed a claim against Government of Rwanda at the High Court requesting to be given the various damages including those of unfair dismissal and what law provides for an employee who was unlawfully dismissed on service, then that Court held that her claim has no merit. Nikuze appealed automatically at the Supreme Court in stating that she was unlawfully suspended because of her suspension exceeds six months and also without being informed the faults she committed so that she presented a defense on them, in additional to that she was given two sanctions of the second degree because she was temporary suspended by the prime minister and then after she was dismissed for good on service by the Minister of the public service and labour while the general statute provides that one breach must be punished by only one penalty. She said also that she unlawfully was dismissed because the letter of 12 April 2011, minister of the public service and labour informed her that she was dismissed from the public servant from 27 February 2009, the time which she was temporary suspended on service, therefore she requests the various damages for those and also the Government of Rwanda shall be given the the penalty forcing it for executing the judgment for preventing it to annoy him after its rendering. The Government of Rwanda defends in stating that Nikuze was lawfully dismissed, but on what regards that the sanction of dismissing her was reversed he realises that it is vice of form which does not damage her, thus the damages and the other amounts she requests for she should not be given them because they are baseless moreover it should not be charged the penalty of forcing the execution because it will comply with the rulings of the judgment. Held : 1. the fact that an employee could be temporary suspended and then after she be automatically dismissed should not be considered as she was sanctioned twice for one breach because the temporary decision would taken for the job interest and to facilitate the investigation to be well conducted and also it is not necessary to defend herself about it because it is not a penalty therefore Nikuze was not sanctioned twice on one fault as she states. 2. It is confirmed that an employee was unlawfully suspended on service when the period of six months exceeds without being reinstalled on job or be automatically dismissed 3. It is an unlawful dismissal when an employer reverses the sanction of dismissing an employee because the automatic expulsion began from when the public employee was informed about the decision of dismissing him/her therefore Nikuze was unlawfully dismissed because she was given the dismissal letter on 12 April 2011 then after she was informed that she was dismissed for the public servant from 27 February 2009. 4. The damages for unlawful dismissal are awarded in Court discretion therefore Nikuze was awarded five times of the net salary. 5. an employee should not be given the compensation in case he did not demonstrate any evidence which proves that she/he applied for annual leave then his employer refused to grant it, and in additional to this Nikuze should not benefit the annual leave of 2009 because she was temporary suspended at the beginning of that year on 27 February 2009.

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6. Each party has the burden of proving the facts it alleges, therefore Nikuze should not be awarded the bonus because she does not prove the way she computed them and the provisions of the laws she bases on for requesting them. 7. In case an employee did not file for her/his salary, he/she should not be awarded the transport allowances and housing allowances because that amount is include into salary. 8. The damages for not be handed the employment certificate are not awarded when the requester does not demonstrate the provisions of law she/he bases on. 9. Damages of being dragged into vexatious ligation, procedural fees and counsel fees are awarded in Court discretion when what the party requested is excessive. 10. In case there is nothing demonstrating that the party will not comply with what were ordered in judgment the Court will not charge him/her the penalty forcing the execution therefore The Government of Rwanda should not be charged the penalty forcing the execution because nothing proves that it will not comply what was ordered in this judgment. Appeal has merit in part; With the court fees on public treasury. Statutes and statutory instruments referred to: Law n° 22/2002 of 09/07/2002 on general statutes for Rwanda public service, article 42, 43, 66, 65, 90, 122 and 106 Decree law 30/07/1888 relating to Contracts or obligations, article 2588 law nº 15/2004 of 12/06/2004 relating to evidence and it’s production, article 3 Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 343 Cases referred to. Judgment I. BRIEF BACKGROUND OF THE CASE [1] On 27 October 2005, NIKUZE Pélagie was employed by minister of public service and labour at SENATE on the post of Procurement Officer under unity of planning; on 11 August 2007 he changed her to an employee in charge of public tender. [2] On 27 February 2009, Prime Minister suspended NIKUZE Pélagie provisionally on service. On 12 April 2011, NIKUZE Pélagie was dismissed on service because of the faults she committed of distributing the public assets on high price, and the fact that she did not submit the report of procurement while she was a Procurement Officer. [3] On 11 October 2011, NIKUZE Pélagie applied administrative appeal to the Minister of public service and labor for requesting the cancellation of the decision which dismiss her on

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service and be given back her right she was deprive for nothing and be given 14,095,158Frw she was not be remunerated during three years which she spent in provisional suspension, but he answered her that the decision should not be cancelled because she did not provide the reasonable explanation. [4] On 06 January 2012, NIKUZE Pélagie filed a claim against Government of Rwanda (MIFOTRA) at the High Court requested to be given the various damages including those of unfair dismissal and what law provides for an un employee who was unlawfully dismissed on service, that Court rendered the judgment n° RAD 0003/12/HC/KIG on 25 January 2013, and held that it has no merit therefore she should not be given the damages she requests. [5] NIKUZE Pélagie appealed against that judgment at the Supreme Court in stating that she is not requesting for being reinstalled on service, but the Government of Rwanda (MIFOTRA) must give to her the various damages indicate in her submission. [6] The hearing was conducted in public on 01 March 2016 and 07 June 2016, NIKUZE Pélagie represented by Counsel HABIYAMBERE Aphrodis, whereas Government of Rwanda (MIFOTRA) represented by State Attorney RUBANGO Epimaque. II. ANALYSIS OF THE LEGAL ISSUES 1. Determining whether NIKUZE Pélagie was unlawfully suspended temporary on service a) due to not be informed the faults she committed so that she presented a defense on them [7] The Counsel for NIKUZE Pélagie states that she was unlawfully suspended because she was not be informed the faults she committed so that she presented a defense on them as it is provided for by article 90 paragraph 1 of law n° 22/2002 of 09/07/2002 on general statutes for Rwanda public service, rather she defended on draft of sanction prepared by Minister of the public service and labour. [8] He states that she was given two sanctions of the second degree provided by article 92 of law n° 22/2002 of 09/07/2002 mentioned above, because she was temporary suspended by the prime minister and then after she was dismissed for good on service by the Minister of the public service and labour, however basing on article 87 of that law, one breach must be punished by only one penalty. [9] Counsel for Government of Rwanda (MIFOTRA) states that he say nothing about the fact on 27 February 2009 Prime Minister suspended temporary NIKUZE Pélagieon service without firstly informed her the faults she committed because what MIFOTRA was sued for is dismissal of NIKUZE Pélagie which it is lawfully conducted. VIEW OF THE COURT

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[10] Article 66, 1o, d of the law n° 22/2002 of 09/07/2002 on general statutes for Rwanda public service which was in force when NIKUZE was suspended temporary provides for that “a government employee is subject to a suspension of duties if a serious disciplinary fault, likely to lead to a sanction of a suspension or to revocation is noted against him/her”. [11] Legal scholar named Joël BERNOT explains that the decision of suspending temporary an employee on service, it is temporary decision taken for employee who was suspected the action which can be named crime or disciplinary, and that decision was taken because of the interest of work because it makes that employee to be investigated while he/she is not working, therefore it leads to the tranquillity in work, also facilitate the liberty of investigation since that employee fails to make any pressure on his colleagues in the service1. [12] The Court is finding even if his letter of 27 February 2009, Prime Minister did not mention the reason why he temporary suspends NIKUZE Pélagie on service, the letter of 12 April 2011, the latter wrote a letter to the minister of public service and labor in indicating that she was temporary suspended on service because of she was suspected to offer the public assets on high price and to not submit the report of procurement while she was Procurement Officer. [13] Therefore the Court finds the fact NIKUZE Pélagie was temporary suspended on service because of the breach mentioned above she was suspected for as it is provided for by article 66, 1o, d of the law n° 22/2002 of 09/07/2002 stipulated above, it is obvious that it is not the sanction she was given that time, rather it is a provisionally decision she was taken for the job interest and for facilitating the investigation to be well done, therefore she was not sanctioned twice as she uses in her pleadings, also it was not necessary to explain herself on what regards her temporary suspension on work because it is not a penalty. b) Because of she was temporary suspended during the period which exceeds six months [14] Counsel Habiyambere Aphrodis states that Nikuze Pélagie was unlawfully temporary suspended on service because she was temporary suspended for the period which exceed six months, form 27 February 2009 till 12 April 2011 while it is unlawful. [15] State attorney RUBANGO Epimaque states that he says nothing on what regards the letter of 27 February 2009 that suspends temporary on service NIKUZE Pélagie because it was written by Prime Minister, rather what MIFOTRA is sued for is the dismissal of NIKUZE Pélagie while it was lawful as it is motivated above. VIEW OF THE COURT [16] igihe 1 “Suspension is a provisional and protective measure which is of obvious interest when facts that are criminal or disciplinary are discovered. In addition to helping to remove a staff member who has been implicated and thus placating relations within the service, it also facilitates the conduct of administrative or criminal investigations, avoiding any pressure on his colleagues in the service. Part of the suspended agent”. By Joël BERNOT, Avocat au Barreau

de

Nantes,

Cabinet

Avoxa, http://www.fptcgc.org/admsite/fichier_pdf/2012-09-24-gdc- discipline_suspension_de_fonction_ok.pdf?PHPSESSID=07b7f3690f1e7327505f2b281123b589

,

consulté le 30/03/2016

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[16] article 65, paragraph 2, of the Law n° 22/2002 of 09/07/2002 on general statutes for Rwanda public service which was in force when NIKUZE was suspended temporary provides for that “the period for suspension of duties cannot exceed six (6) months”. Whereas article 68 of that Law, which provides that Suspension of duties ends either by: 1° resumption of service in case there is a vacant post; 2° resumption of service after eventually discharging a criminal sentence or disciplinary sanction; 3° automatic dismissal or resignation. [17] The letter of 27 February 2009 which includes in file demonstrating that Prime Minister wrote to NIKUZE Pélagie for informing her that she is temporary suspended on the duties she was in charge at Senate from 27 February 2009. From 12 April 2011, Minister of public service and labour also wrote to her for informing her that she was automatic dismissed from the public servants since 27 February 2009. [18] Basing on article 65, paragraph 2 of the law n° 22/2002 of 09/07/2002 mentioned above , the Court finds that NIKUZE Pélagie was unlawfully temporary suspended because she was temporary suspended for the period exceeds to six months provided by that article, because she was dismissed on job on 12 April 2011, after one year and seven months and fifteen day in temporary suspension on service. 2. Determining whether NIKUZE Pélagie was unlawfully dismissed on service because of the sanction she was given for dismissing her on service was reversed. [19] Counsel for NIKUZE Pélagie states that she unlawfully was dismissed because the letter of 12 April 2011, minister of the public service and labour informed her that she was dismissed from the public servant from 27 February 2009, the time which she was temporary suspended on service. [20] State attorney states that basing on article 90, paragraph 2, law n° 22/2002 of 09/07/2002 mentioned above, the penalty which dismiss automatic NIKUZE Pélagie on service must not be reversed , but even if that sanction was reversed, he realises that it is vice of form which does not damage her. VIEW OF THE COURT [21] Regarding sanctions, article 90, paragraph 2, of the Law n° 22/2002 of 09/07/2002 on general statutes for Rwanda public service, provides for that “no sanction can be effective for the period prior to its pronouncement”, whereas article 122, paragraph 2 of that law provides for that “expulsion is decided by the authority competent in the area of Public Service following a confirming advice from the Public Service Commission” [22] As it is demonstrated above, on 12 April 2011 Minister of the public service and labour wrote letter to NIKUZE Pélagie informing her that the penalty she was given for dismissing her on service, it is implemented from 27 February 2009. [23] The Court finds that NIKUZE Pélagie was unlawfully dismissed on service because the sanction for expulsing her on service which she was sanctioned for should not be reversed, the fact that her employer reversed it and began from 27 February 2009, the time which she was

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temporary suspended, while bases on article 122, paragraph 2, of the law mentioned above it should began form 12 April 2011 the time he gave it to her; he was acting contrary to the provision of this article. 3. Determining whether NIKUZE Pélagie should be given the damages she requests [24] Counsel for NIKUZE Pélagie states that the Government of Rwanda (MIFOTRA) must give to her the following damages: – The damages for unlawful dismissal: 237,750Frw of her salary x 6 months = 1,426,500Frw; – The annual leave allocation of the year 2008 and 2009 she was not given: 237,750Frw x 2 months = 475,500Frw; – Bonus of the years of 2005,2006,2007,2008 and 2009 she was not given: 237,750Frw x 5 months = 1,188,750Frw, but it should be removed on 210,000Frw of the bonus of the year 2007 and 2008 that she was given in 2010; – Housing allowance of three years she spent in temporary suspension on service 33,964Frw x 12 months x3 =1,222,704Frw; – Transport allowance of three years she spent in temporary suspension on service: 33,964Frw x 12 months x3 =1,222,704Frw; – The damages for not be given the employment certificate that demonstrates that she served at Sanate: 237,750Frw x 12 months x3= 8,559,000Frw; – The mages for being dragged into vexatious litigation: 4,000,000Frw; – 1,000,000Frw of the procedural fees and 2,000,000Frw of the Counsel fees for the first instance and 1,200,00Frw of procedural fees and 3,000,000Frw of the counsel fees at the appeal level. [25] State attorney Rubango Epimaque states that NIKUZE Pélagie would not be given the damages for unlawful dismissal she requests because she was lawful dismissed, that she should not be given the bonus of the years for 2005,2006 and 2009 which she requests for because the Prime Minister’s Order n° 121/03 of 08/09/2010 establishing the procedure of performance appraisal and promotion of public servants provides for that the bonus will be paid from 2001.thus Nikuze shall not be given the bonus which are before 2011, that she must not be given the damages for not be given the employment certificate because she did not demonstrate the legal basis for her request. [26] He also states that NIKUZE Pélagie should not be given the annual leave allocation of 2008 because she does not demonstrate that she applied for it and she was refused, and she should not benefit the annual leave of 2009 in case she was temporary suspended 27 February 2009, that she should not be given transport fees and housing allowance because that amount are including in the monthly salary she was remunerated, but she should be given them when she proves that she really benefited them. He adds that this Court should give to her in its discretion moral damages, counsel fees and the procedural fees, in case it finds the merit of those damages.

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VIEW OF THE COURT [27] Concerning the damages in general, article 258 of civil code book III, provide for that “any act of man, which causes damage to another obliges the person by whose fault it happened to repair it”. [28] Basing on provision of that article, the Court finds that the fact Government of Rwanda (MIFOTRA) dismissed NIKUZE Pélagie unlawful and led her to spend a long period in dilemma in waiting the decision from her employer, and led her to not search for another job which can help her and her family to live, it should give to her the damages for unlawful dismissal which are awarded in Court discretion are amounting six times of the monthly net salary of 201,616Frw as it is indicated by salary certificate which is in case file, therefore those damages are calculated like this: 201,616Frw x 6 = 1.209,696Frw [29] Concerning the annual leave allocation, article 42 of the Law n° 22/2002 of 09/07/2002 on general statutes for Rwanda public service, provides for that “at the end of twelve (12) months of service, the government employee must compulsorily benefit from an annual statutory leave of thirty (30) calendar days”. Whereas article 43 of that law provides for that “where a Government employee has not been able to benefit from his/her annual leave during the previous year for service reasons though he/she applied for it, he/she gets a leave resulting from the accumulation of two consecutive years of service”. [30] The Court finds that NIKUZE Pélagie should not be given the annual leave allocation of 2008 because she does not produce any evidence which proves that she applied for it to her employer and then she was been refused it, also she should not be given the annual leave allocation of 2009 because she was temporary suspended at the beginning of that year on 27 February 2009. [31] On the issue of determining whether NIKUZE Pélagie would be given the bonus of the years of 2005,2006 and 2009, article 3 of the law nº 15/2004 of 12/06/2004 relating to evidence and it’s production, provides for that “each party has the burden of proving the facts it alleges”, basing on that article, the Court finds that NIKUZE Pélagie should not be awarded that amount because she does not demonstrate the way she calculated it and the provision of the law she bases on for requesting it. [32] Concerning the transport fees and housing allowance of the time she spent in temporary suspension, article 106 of law n° 22/2002 mentioned above, provides for that Every Government employee has the right, after accomplished service, to a monthly salary comprising: basic salary to which is added, if necessary, family allowances and possibly compensations, bonuses and other benefits relating to his/her post specificity. Basing on what provided by that article, the Court finds that NIKUZE Pélagie should not be awarded the transport and housing allowances because they are including in her salary and also she did not file for her salary of 3 years she spent in temporary suspension. [33] Regarding the damages for not be handed the employment certificate, the Court finds that NIKUZE Pélagie should not be given those damages because she does not the legal basis of her request.

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[34] Concerning the moral damages for dragging NIKUZE Pélagie into vexatious litigations, the court is finding that those damages has merit, because of Government of Rwanda (MIFOTRA) suspended her unlawful and led to seek for the justice to the Court also she has what won for in this judgment, therefore it must give to her 500,000Frw of the damages that are awarded into the discretion of the Court because what she requests for are excessive. [35] The Court also finds that Government of Rwanda (MIFOTRA) should pay to NIKUZE Pélagie 1,000,000Frw of the procedural fees and counsel fees for both instances, they are awarded into its discretion because what she requests for are excessive. 4. Determining whether the Government of Rwanda (MIFOTRA) should be charged the penalty forcing the execution [36] The Counsel for NIKUZE Pélagie states that basing on 343 of Law n° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, the Government of Rwanda (MIFOTRA) must give to her 1,500,000Frw each month of the penalty forcing it for executing the judgment for preventing it to annoy him after its rendering. [37] The State attorney states that it should not be charged that penalty because it will comply with the rulings of the judgment. VIEW OF THE COURT [38] The Court finds that the Government of Rwanda (MIFOTRA) should not be charged the penalty forcing the execution because nothing demonstrating that it will not comply what was ordered in this judgment. [39] Therefore the Court finds that, the total amount which Government of Rwanda (MIFOTRA) should pay to NIKUZE Pélagie are: 1,209,696Frw of the damages for unlawful dismissal + 500,000Frw of the damages for being dragged into vexatious litigation+ 1,000,000Frw of the procedural fees and counsel fees; all together are amounting to 2,709,696Frw. III. DECISION OF THE COURT [40] Decides that the appeal of NIKUZE Pélagie has the merit in part; [41] Declares that the rulings of the judgment n° RAD 0003/12/HC/KIG rendered by High Court on 25 January 2013 overturns in part; [42] Orders Government of Rwanda (MIFOTRA) to pay to NIKUZE Pélagie the damages which are amounting to 2,709,696Frw; [43] Orders that the court fees be on the side of public treasury.