By Georgina Maka’a
The suspension of former Commissioner of Lands Alan McNeil in November 2025 is unlawful, a High Court judge has ruled.
Justice Augustine Aulanga also found that the Permanent Secretary of the Ministry of Public Service Luke Cheka failed to follow mandatory disciplinary procedures before removing McNeil from office.
In a significant ruling delivered on July 29, Justice Aulanga ruled that McNeil should have been formally charged and given at least seven days to respond to the allegations before any adverse disciplinary action was taken against him.
The judge also found that the Public Service Commission (PSC) breached its constitutional duty when it refused to properly hear and determine McNeil’s appeal against his suspension.
The ruling brings fresh scrutiny to the circumstances surrounding the sudden suspension of one of the country’s most senior land officials in November 2025.
McNeil was suspended by Cheka in a letter dated 13 November 2025, over what were described as “very serious allegations of misconduct”.
The allegations related to the execution of lease documents and a memorandum of understanding involving deceased trustees, an alleged breach of a High Court order, and the alleged mischaracterisation of a “Good Will” payment associated with a former prime minister.
Cheka’s letter stated that, “given the magnitude of your misconduct”, he had decided to suspend McNeil from duty with immediate effect.
McNeil was also barred from entering the Ministry of Lands and from using government resources.
But Justice Aulanga found that no formal charge had been issued against McNeil before he was suspended.
He noted that McNeil had not been shown any report setting out the allegations against him, had not been formally charged and had not been given the required opportunity to respond before the suspension took effect.
Under the Public Service Commission Regulations, Justice Aulanga said, the process must begin with a report setting out the facts and proposed charge.
“If misconduct is considered to have occurred, the officer must then be informed in writing of the charge and given at least seven days to respond,” the judge said..
“Only after those steps have been followed can the disciplinary process proceed further,” he added.
Justice Aulanga rejected an argument by the Attorney General’s Office that the regulations did not require such a strict sequence.
He said the earlier court decision relied on by the respondents, Atkin v Attorney General, only established that a Board of Inquiry was not compulsory in every misconduct case.
“It did not mean that authorities could simply skip the earlier requirements to report the alleged misconduct, formally charge the officer and give him an opportunity to respond.
“The discretionary character of one late stage safeguard cannot be read backwards to erase the mandatory character of the earlier, foundational safeguards,” Justice Aulanga said.
Suspension Cannot be Used as Punishment
Justice Aulanga also made an important distinction between suspending an officer while a disciplinary process is underway and suspending someone after effectively deciding that they are guilty of misconduct.
He found that the regulations allow the Permanent Secretary to suspend an officer as a temporary or precautionary measure while properly initiated disciplinary proceedings are continuing.
But suspension cannot be used as a substitute for the disciplinary process itself.
In McNeil’s case, the Court found that the wording of the November 13 letter showed that the Permanent Secretary had already reached a conclusion that McNeil had committed misconduct.
The letter said, “given the magnitude of your misconduct”, the Permanent Secretary had decided to suspend him.
Justice Aulanga said this amounted to a determination of misconduct before McNeil had been charged or given an opportunity to defend himself.
“It therefore concluded that the Permanent Secretary had acted ultra vires — meaning outside the legal powers given to his office.:”
Importantly, however, the Court clarified that the Permanent Secretary does have authority under Regulation 63 to suspend an officer as a precautionary measure once a proper disciplinary process has commenced.
“What the Permanent Secretary did not have authority to do was determine that McNeil had committed misconduct without the required process or a valid delegation of that specific power.
PSC Also Breached its Duty
McNeil appealed his suspension to the Public Service Commission on 14 November 2025, the day after he was suspended.
But the Court found that the Commission failed to properly deal with his appeal.
Instead, McNeil was told verbally that the Permanent Secretary had “followed procedure” and that he should “do as told by [his] Minister”.
The Commission subsequently confirmed that it could not deal with the appeal.
The High Court rejected that approach.
Justice Aulanga ruled that the Commission has a constitutional duty to exercise disciplinary control over public officers and must hear and determine properly lodged appeals.
The Commission cannot simply refuse to hear an appeal, particularly where the appeal raises serious questions about whether the disciplinary process itself was lawful.
The Court described the refusal to hear McNeil’s appeal as an abdication of the very function the Constitution gives the Commission.
Reinstatement Did Not End The Case
Although McNeil has since been reinstated as Commissioner of Lands (but later resigned), the Court rejected the argument that his reinstatement meant the case had become irrelevant.
Justice Aulanga said reinstatement only restored him to his position.
“It did not answer whether his original suspension was lawful, nor did it resolve the allegations of misconduct against him.
“Those allegations remain unresolved unless they are properly dealt with through a lawful disciplinary process.”
The Court also found that the case raised important questions affecting the entire public service, rather than McNeil alone.
Its ruling therefore provides guidance for how disciplinary cases involving public officers must be handled in future.
PSC Given 28 days
The Court has ordered the Public Service Commission, or a lawfully empowered delegate, to take action within 28 days.
It must either:
start a fresh disciplinary process against McNeil in full compliance with the regulations; or
formally close the allegations against him and confirm in writing that no further disciplinary action will be taken over the matters contained in the November 13 suspension letter.
“If a new disciplinary process is started, any formal charge must be issued within 14 days of its commencement, and McNeil must be given at least seven days to respond.
“If a Board of Inquiry is appointed, it must report within 14 days of its appointment.”
Justice Aulanga also ordered that any future suspension imposed during the process must be clearly stated to be a temporary measure pending the conclusion of the disciplinary proceedings.
“The suspension must also lapse automatically if the disciplinary process stalls for more than 30 days without good reason.”
Importantly, Justice Aulanga stressed that his ruling does not determine whether the allegations against McNeil are true or false.
Those allegations can only be determined through a lawful disciplinary process.
Justice Aulanga ordered the Government to pay McNeil’s legal costs.x
