BOFEPUSU-BOPEU settlement collapses
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BOPEU President, Andrew Motsamai
The tiff between BOPEU and BOFEPUSU has proven to be a runway train crashed into smithereens. The two labour movements have failed to settle out of court and theirs will only be halted by a steep embankment in the form of a Court of Appeal (CoA) decree.
The failure to reach an out-of-court settlement by the two labour movements has been described as “indicative of our fundamental differences”, in words of one union boss.
A triad of CoA judges comprising its President, Justice Ian Kirby, Justices Isaac Lesetedi and Steven Gaongalelwe last month advised the warring labour movements to explore an out of court settlement, after Kirby had described the case as “a power struggle without facts of law”.
In its proposed terms of settlement seen by this publication, BOFEPUSU demanded that, “BOPEU irrevocably abandon both judgements of the Industrial Court that it won and that after agreeing and inking the deal, BOFEPUSU will notify CoA that its current appeal falls away.”
It also said that as part of the deal BOPEU shall pay the costs of BOFEPUSU’s current appeal at the CoA.
BOFEPUSU also demanded that as part of the deal, BOPEU must fall on its own sword and recognise the Federation’s November 2011 admission as an Acting Jointly Arrangement (AJA) into the Bargaining Council and further recognise the AJA and admission as valid and still standing.
BOFEPUSU also sought to preserve the status quo of the Bargaining Council.
Its settlement proposal states that BOPEU shall agree that: “the representation threshold referred to in clause 6.1.1 of the constitution of the Bargaining Council is met where the combined membership of the parties to an AJA equals at least one third of the membership of all recognised trade unions whose members are public officers in terms of the Public Service Act, 2008.”
It continues: “this applies for all purposes contemplated in the Constitution, including admission of trade union parties to the council in terms of clause 6 and or continued membership of trade union parties to the council in terms of clause 7 of the constitution.”
Clause 6.1.1 of the Bargaining Council states that for a union to be admitted into the Council, it shall represent at least one third(1/3) of the membership of all recognised trade unions whose members are public officers in terms of the PSA Act of 2008.
The labour bloc also states that the admission threshold into the Council shall be hung at the 28,780 mark and that the Council shall then urgently determine whether or not the joint application submitted in January 2016 by BOPEU, Botswana Nurses Union (BONU) as well as Trainers and allied Workers Union (TAWU), otherwise known as Botlhe Bargaining Forum (BBF) complies with admission requirements.
However, BOPEU in its counter-proposal gunned at overturning the status quo.
It states in its curt proposed terms that the representation threshold of 1/3 shall be reduced to 5000 members of all recognised trade unions in terms of the PSA Act. It goes on to state that this is to make the Bargaining Council an inclusive organisation allowing even the smallest trade unions an opportunity to be members of the Council in their own right.
It further states that admission to the Council be limited only to individual trade unions as compared to an AJA and that the AJA shall be only be permissible where there is a union admitted into the Council in its own right.
Is also says that each party should bear its own costs in the current appeal.
In a circular passed to regional chairpersons, BOPEU says that if it should abandon the cases it has won against BOFEPUSU, the meaning attached to it is to such conduct will be that BOPEU itself, does not believe that it was entitled to the orders granted to it by the industrial court.
It further states that BOFEPUSU terms of settlement were crafted aimed at extracting political fodder as abandoning the orders will give it breathing room to maintain that it always was right from the beginning.
BOPEU also says that if it should pay costs for BOFEPUSU in the appeal as proposed, it will give the impression that it has acted wrongly in the whole matter.
It also states that if the BBF application fails then BOFEPUSU will remain the sole trade union party to the Bargaining Council and will participate alone in the 2016/2017 wage talks.
The Court of Appeal is expected to rule on the case that Kirby described as very complex that it might take some time before the verdict is out.
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DPP drops Kably threat to kill case
The Botswana Democratic Party (BDP) Chief Whip and Member of Parliament for Letlhakeng/Lephephe Liakat Kably has welcomed the Directorate of Public Prosecution (DPP)’s decision not to prosecute BDP councillor, Meshack Tshenyego who allegedly threatened to kill him. However, the legislator has warned that should anything happen to his life, the state and the courts will have to account.
In an interview with this publication, Kablay said he has heard that the DPP has declined to prosecute Tshenyego in a case in which he threatened to kill him adding that the reasons he received are that there was not enough evidence to prosecute. “I am fine and at peace with the decision not to prosecute over evidential deficits but I must warn that should anything happen to my life both the DPP and the Magistrate will have to account,” Kablay said.
Connectedly, Kably said he has made peace with Tshenyego, “we have made peace and he even called me where upon we agreed to work for the party and bury the hatchet”.
The DPP reportedly entered into a Nolle Prosequi in the matter, meaning that no action would be taken against the former Letlhakeng Sub-district council chairperson and currently councillor for Matshwabisi.
According to the charge sheet before the Court, councilor Tshenyego on July 8th, 2022 allegedly threatened MP Kably by indirectly uttering the following words to nominatedcouncilor Anderson Molebogi Mathibe, “Mosadi wa ga Liakat le ban aba gagwe ba tsile go lela, Mosadi wame le banake le bone ba tsile go lela. E tla re re mo meeting, ka re tsena meeting mmogo, ke tla mo tlolela a bo ke mmolaya.”
Loosely translated this means, Liakat’s wife and children are going to shed tears and my wife and kids will shed tears too. I will jump on him and kill him during a meeting.
Mathibe is said to have recorded the meeting and forwarded it to Kably who reported the matter to the police.
In a notice to the Magistrate Court to have the case against Tshenyego, acting director of Public Prosecutions, Wesson Manchwe cited the nolle prosequi by the director of public prosecution in terms of section 51 A (30) of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana as reasons for dropping the charges.
A nolle prosequi is a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action.
“In pursuance of my powers under section 51 A (300 of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana, I do hereby stop and discontinue criminal proceedings against the accused Meshack Tshenyego in the Kweneng Administrative District, CR.No.1077/07/2022 being the case of the State vs Tshenyego,” said Manchwe. The acting director had drafted the notice dropping the charges on 13th day of March 2023.
The case then resumed before the Molepolole Magistrate Solomon Setshedi on the 14th of March 2023. The Magistrate issued an order directing “that matters be withdrawn with prejudice to the State, accused is acquitted and discharged.”
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DPP seizes prosecution duties from Police
Directorate of Public Prosecution (DPP) has finally taken over prosecution from the Botswana Police Service (BPS). The police have been prosecuting for years, but the takeover means that they will now only focus on investigations and then hand over to the DPP for prosecution.
Talks of complete takeover began as far back as 2008, but for years it seemed implementation was sluggish. However, the Minister of Justice, Machana Shamukuni, revealed that the complete takeover is expected to be completed soon.
During a presentation to the Committee of Supply by Shamukuni this week, it was revealed that the project has been implemented in 22 police stations nationwide, including Maun, Selebi-Phikwe, Palapye, Francistown, and Kasane. He further stated that the project has been allocated P3,000,000 for the 2023/2024 financial year to facilitate the opening of more satellite offices for the DPP.
Shamukuni said the Lobatse station is scheduled for a complete takeover by the end of May 2023, while the Kasane DPP satellite office has been established and became operational as of February 1, 2023.
“As reported previously, preparations are at an advanced stage to open a satellite office in Tsabong to curtail expenses, as well as frequent long-distance trips to these areas, as it is currently serviced by the Lobatse DPP office,” Shamukuni said.
Shamukuni said that the takeover strategy is to enable a seamless and gradual takeover of prosecution from the BPS without overwhelming and overstretching the thin resources at its disposal.
According to Shamukuni, the implementation of the prosecution takeover project has increased the workload of the 211 prosecutors in the DPP establishment.
Furthermore, the Justice Minister said DPP statistics show that the DPP has a total of 11,903 cases and dockets as of January 2023. He indicated that this is a significant increase in the number of cases being handled by the DPP, considering that in November 2021, the DPP had just over 8,471 files.
“Out of the total case load, 8 382 are cases pending before various courts while 3521 are dockets received from law enforcement agencies of which 1 325 are awaiting service of summons while the rest are being assessed for suitability of prosecution or otherwise” said Shamukuni.
He further stated that The DPP has consistently maintained an 80% success rate in matters completed at court.
“As at the end of January 2023, the success rate stood at 82.3% against a target of 90% whilst the average performance in respect of turnaround time for conclusion of cases at court stood at 17.5 months against a target of 18 months,” he said.
BACKLOG OF CASES – LAND TRIBUNAL
Meanwhile, Minister Shamukuni has revealed that Gaborone land Tribunal is experiencing a backlog of cases. Before parliament this week, Shamukuni revealed that a total 230 appeals were completed for the period of April 2022- December 2022 and only 76.5% of them were completed within set time frame.
The minister said that the Gaborone division has experiencing a backlog of cases due to manpower constraints and he further indicated that presiding officers from other divisions have been brought in to expedite case disposal.
He further indicated that the land tribunal is a specialized court that has been empowered to resolve appeals arising from land boards. “It has been mandated to determine appeals from the decisions of Physical planning committees of Districts Councils” said Shamukuni.
Land Tribunal relocated to the Ministry of Justice from Ministry of Land and Water Affairs in November 2022.
“An amount of P37, 842,670 is requested to cover salaries, allowance and other operational expenses for the Department of the land Tribunal,” alluded Shamukuni
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BCP, AP stalemate in 7 constituencies
When the Botswana Congress Party (BCP), Alliance for Progressives, Botswana Labour Party (BLP), and conveners reconvene next week, the controversial issue of allocation of the seven constituencies will be the main topic of discussion, WeekendPost can reveal.
Not only that, but the additional four constituencies will also dominate the talks. The idea is to finally close the “constituency allocation phase,” which has proven to be the most difficult part of the ongoing negotiations.
Earlier this year, the two parties announced that the marathon talks would be concluded by February. Even at a media briefing last month, BCP Secretary General Goretetse Kekgonegile and Publicity Secretary Dr. Mpho Pheko were optimistic that the negotiations would be concluded before the end of February.
However, it is now mid-March and the talks have yet to be concluded. What could be the reasons for the delay? This is a question that both Kekgonegile and Pheko have not responded to, as they have ignored the reporters’ inquiries. However, a senior figure within the party has confided to this publication as to what is delaying the highly anticipated negotiations.
“We are reconvening next week to finalize constituency allocations, taking into account the additional four new ones plus the outstanding seven,” he explained. It later surfaced that Gaborone Central, Gaborone North, Mogoditshane, Tswapong North, Francistown West, Tati West, and Nata Gweta are all contested by both BCP and AP. This is because the other 50 constituencies were allocated by December of last year.
The three parties have failed to find common ground for the Bosele Ward by-elections. Are these constituencies not a deal breaker for the talks? “None of the constituencies is a deal breaker,” responded a very calm BCP official.
In Bosele Ward, AP has yielded to BCP, despite most of its members disapproving the decision. On the other hand, BLP has refused, and it will face off with BCP together with Botswana Democratic Party (BDP) and Umbrella for Democratic Change (UDC).
The decision by BLP to face off with BCP has been labelled as a false start for the talks by political observers.