The Court of Appeal (CoA) has this week laid the blame on government and Botswana Federation of Public, Private and Parastatal Sectors Union (BOFEPUSU) for the eventual collapse of the Public Service Bargaining Council (PSBC).
Both BOFEPUSU and government withdrew from the PSBC following disagreements and countless court battles between the duo, rendering the Council eventually ineffective and worthless. In the just ended matter, government in cohorts with Botswana Public Employees Union (BOPEU) was appealing a case in which Gaborone High Court Judge Tshepo Motswagole earlier this year ruled in favour of BOFEPUSU in a matter to set the record straight on the scope of the Bargaining Council.
In essence, the judgement of Justice Motswagole nullified the unilateral decision by Government to award salary increments outside the Public Service Bargaining Council (PSBC) saying government had bargained in bad faith with the unions.
“Government breached its duty to bargain in good faith when it granted unilateral 3% increment of salaries on March 30, 2016. The scope of the PSBC- being a joint industrial council – extends to all public servants and is not only restricted to trade union members,” Motswagole had ruled then. At the time, BOPEU was not sitting in the PSBC and it is understood that motivated its teaming up with government against rival union, BOFEPUSU.
The two critical questions in the appeal were both answered this week in the judgement as delivered by a bench consisting of CoA President Justice Ian Stuart Kirby, Justice Monametsi Gaongalelwe and Justice Zibani Makhwade. The trio, through Justice Gaongalelwe who read the judgement on their behalf, reached a conclusion that “the government is not permitted to grant unilateral wage increases to public servants during the period when wage negotiations are in progress as this constitutes negotiating in bad faith.”
In regard to the principle of negotiations in labour matters having to be conducted in good faith by both the employer party and the trade union party, Judge Gaongalelwe also said that it was impermissible, and an act of bad faith for government to grant a unilateral increase to public servants during the period set aside each year for wage negotiations. This, he said, could be construed as being intended to frustrate ongoing negotiations.
However, the trio also ruled, which seems to be contradictory, that; “decisions of the Public Service Bargaining Council (PSBC) do not presently bind public service employees who are not unionised nor those who are members of trade unions not admitted to the council.”
The highest court explained that on the strength of all materials canvassed, they found that decisions of the PSBC, as presently provided for only bound parties to the Council. In practical terms they highlighted that this translated to saying that decisions of the Council governed only those public employees who are members of trade unions admitted to the Council.
Justice Gaongalelwe explained that “so while it is mandated with dealing with cross-cutting issues common to all public servants, the PSBC decision will, by article 28 bind only the members of its constituent unions.” He also said that all indications suggest that government acted in bath faith when negotiating with unions. “In casu the actions of government as a party to the PSBC fall squarely within what amounts to bad faith. Government was unwilling to enter into discussions as evidenced by ignoring the letter from BOFEPUSU and refused any counter proposal.”
“Granting the unilateral increment in the manner in which it was done seriously undermined the trade unions and dented their integrity and credibility in that it intended to show employees that union representatives are not effective in bargaining and such conduct dissuades employees from joining trade unions,” Justice Gaongalelwe pointed out in the judgement.
He added that, “In my judgement, even if such increment had been offered during the negotiating period to public officers whose trade unions were not members of the Council and to non-unionized employees only (which was not the case) that would still be amounted to bad faith since at the end of the day such adjusted salaries would be withheld from officers whose trade unions are parties to the Council, and government would not achieve its objective of making adjustments for purposes of achieving uniformity in salaries of employees holding similar and same scale positions. The granting of such an increment would have an obvious damaging effect on the status of the PSBC merger unions.”
According to Gaongalelwe, the judgement will probably mark a completion of what had been a long and tortuous journey over a rough terrain undertaken by government and prominent trade unions. “The journey commenced through launching an application for an interdict at the Industrial Court, then a review application at the High Court and ultimately the matter came to this court, he said.
“The controversy in this appeal largely revolves around the interpretation of certain provisions found in statutes and instruments dealing with labour relations in the country. These are the Public Service Act, Trade Unions and Employers’ Organisations Act, Trade Disputes Act and the constitution of Public Service Bargaining Council,” he added.
Collapse of the Bargaining Council is a step in retrogression
According to Gaongalelwe, the effect of the withdrawal of all trade union parties from the PSBC and that there was no Bargaining Council presently is a step in retrogression. “it creates an unhealthy situation which will be counterproductive in the end, with uncoordinated parallel negotiations being held with sundry unions,” the CoA judgement pointed out. Justice Gaongalelwe said trade unions have been created for the purpose of constructive collective bargaining and their forming a bargaining council was a valuable move for the benefit of members.
He stressed that: “I must say this latest development causes a concern. An operative PSBC gives government the opportunity to benefit from properly researched submissions advanced by the unions, who are well resourced for this purpose, and to receive feedback on its own proposals developed during the budgetary process, so that an acceptable and affordable compromise can hopefully be attained each year. This is a positive process for the benefit of the nation, and should not be viewed in a negative light.”
The Judge emphasised that since parties had withdrawn from the PSBC, which has been rendered dysfunctional “shows an urgent need of the government and the unions to revisit either the Act or the PSBC constitution or both, so that a fair and inclusive negotiating forum can be reconstituted”.
Parliament should amend law to remove obstacles for unions admission to PSBC
The way forward, Judge Gaongalelwe pointed out, might be for parliament to consider amending the relevant statutes, if so advised by the appropriate authorities, to set by law the annual negotiating period, and to remove some of the obstacles to admission to the council.
He said “the thresholds in respect of both recognition of a trade union by the employer and for the admission to the PSBC are too high, and make fully inclusive PSBC impossible,” before adding that “It is difficult and often unachievable for a single trade union to be admitted to the Council. This inevitably leads to the trade union desirous of becoming party to the council being compelled to enter into acting jointly agreements which have their own problems.”
He added that it can also lead to one sector of the public service being over-represented in the Council at the expense of other sectors, and that seems to have happened at one stage in this case. He justified highlighted that the withdrawal of BOPEU from the BOFEPUSU acting jointly agreement created just such a scenario.
However, to avoid being seen to be encroaching to parliament territory, Justice Gaongalelwe highlighted that it is worth noting that the remarks were only suggested possibilities, “since the courts has no legislative powers and that it was parliament which legislated where its wisdom so directs”. BOFEPUSU was represented by Advocate Alec Freund, Mboki Chilisa and Onuorah Ifezue while BOPEU was represented by Dutch Leburu. Odirile Otto, Advocate Tim Bruinders and Joseph Akoonyatse stood in for government.
In a classic and shocking case of disgrace and dishonour to this country, the law enforcement agencies are currently struggling to cover up a damaging and humiliating scandal of having conspired to forge the signature of a Palapye Chief Magistrate, Rebecca Motsamai in an unlawful acquisition of the much-publicised 2019 warrant of arrest against Isaac Kgosi, the former director of the Directorate of Intelligence Services (DIS).
The cloak-and-dagger arrest was led by the DIS director, Brigadier Peter Magosi supported by the Botswana Police, Botswana Defence Force (BDF), with the Botswana Unified Revenue Services (BURS) which accused Kgosi of tax evasion, in the backseat.
Umbrella for Democratic Change (UDC) constituent members are struggling to reach an agreement over the allocation of wards for the imminent ward by-elections across the country.
Despite a Memorandum of Understanding (MoU) between Umbrella for Democratic Change (UDC), Botswana Patriotic Front (BPF) and Alliance for Progressives (AP) are said to be active, but the nitty-gritties are far from being settled.
The eight bye-elections will be a precursor of a somewhat delayed finalisation of the brittle MoU. The three parties want to draw a plan on how and who will contest in each of the available wards.
This publication has gathered that the negotiations will not be a run off the mill because there is already an impasse between the Botswana Congress Party (BCP) which is a UDC constituent and AP (currently negotiating to join umbrella).
The by-elections joint committee met last week at Cresta President Hotel in a bid to finalise allocation but nothing tangible came out of the gathering, sources say.
The cause of the stalemate according to those close to events, is the Metsimotlhabe Ward which the two parties have set their eyes on.
In 2019, he ward was won by Botswana Democratic Party’s (BDP) Andrew Sebobi who unfortunately died in a tragic accident in February last year.
Sebobi had convincingly won by 1 109 votes in the last elections; and was trailed by Sephuthi Thelo of the UDC trailed him with 631 votes; while Alliance for Progressives’ Innocent Moamogwe got 371 votes.
Thelo is a BCP candidate and as per UDC norm, incumbency prevails meaning that the BCP will contest since they were runners up. On the other hand, AP has also raised its hand for the same.
“AP asked for it on the basis that they have a good candidate but BCP did not agree to that request also arguing they have a better contestant,” one UDC member confided to this publication.
Notwithstanding Metsimotlhabe Ward squabble, it is said the by-election talks are almost a done deal, with Botswana National Front (BNF) tipped to take Boseja South ward in Mochudi East constituency. Botswana Patriotic Front (BPF) will be awarded Tamasane Ward in Lerala/Maunatlala constituency, sources say.
“But the agreement has to be closed by National Executive Committee (NEC),” emphasized the informant.
The NEC is said to have been cautioned not to back the wrong horse but rather rate with reason and facts.
UDC President, Duma Boko has told this publication that, “allocation is complete with two wards already awarded but with only one yet to be finalized,” he could not dwell into much details as to which party got what and the reasons for the delay in finalisation.
Chairperson of the by-elections committee, Dr. Phenyo Butale responded to this publication regarding the matter: “As AP we contested and as you may be aware we signed the MoU with UDC and BPF to collaborate on bye-elections. The opposition candidate for all bye-elections will be agreed by these parties and that process is still ongoing,” he said when asked if AP is interested on the ward and how far with the talks on bye-elections.
Butale, a former Gaborone Central Member of Parliament, who is also AP Secretary General continued to say, “As the chairperson of the bye-elections committee we are still seized with that matter. We should also do some consultations with the local structures. Once the process is complete we will issue a notice for now we cannot talk about the other two while the other is still pending the other one”.
Butale further clarified: “There is no such thing as AP and BCP not in agreement. It is an issue of signatories discussing and determining the opposition candidates across the three wards.”
Apart from the three wards, there are five more council wards that UDC is yet to allocate to cooperating partners.
FROM PALAPYE MEET: BPP CAUTION NEC MEMBERS
With the UDC cheerful from last weekend’s meeting in Palapye, the meeting however was very tense on the side of both BCP and BNF, with only BPP flexing its muscle and even lashing out.
BCP going into the meeting, had promised to ask difficult questions to the UDC NEC.
BCP VP and also acting Secretary General, Dr. Kesitegile Gobotswang, presented their qualms which were addressed by UDC Chairperson Motlatsi Molapisi, informants say.
It is said Molapisi is fed up and concerned by some UDC members especially those in the NEC who ‘wash party’s dirty linen in public’.
Insiders say the veteran politician cautioned the NEC members that they “will not expel any party but individuals who tarnish the image of the UDC.”
It is not the first time BPP play a paternalistic role as it once expressed its discontent with BCP in 2020, saying it should never wash UDC linen in public.
At first it is said, BPP, the oldest political formation in Botswana, claims disappointment on BCP stance that UDC should be democratised especially by sharing their stand with the media. Again, BPP was not happy with BCP leader Dumelang Saleshando’s decision to air his personal views on social media regarding the merger of UDC party.
Botswana Police Service (BPS) Commissioner, Keabetswe Makgophe, has of late been dousing raging fires from various quarters of society following the infiltration of the police fingerprint system by the Directorate on Intelligence and Security (DIS), WeekendPost has learnt.
Fresh information gleaned from a number of impeccable sources, points to a pitiable working relationship between the two state organs. Cause of concern is the DIS continuous big brother role to an extent that it is now interfering with other institutions’ established mandates.
BPS which works closely with the DIS has been left exasperated by the works of the institution formed in 2008. It is said, the DIS through its Information Technology (IT) experts in collusion with some at BPS forensics department managed to infiltrate the Fingerprint system.
The infiltration, according to those in the know, was for the DIS to “teach a lesson” to some who are on their radar. It is said the DIS is playing and fighting dirty to win the fights they have lost before.
By managing to hack the police finger print system, a number of renowned businessmen and other politically exposed persons found their fingers in the system. What surprised the victims is the fact that they have never been charged of any wrongdoing by the police and they were left reeling in shock to learn that their fingers are on the data-base of criminals.
In fact, some of those who their fingerprints were falsely included in the records of those on the wrong side of law learnt later when other errands demanded their fingerprints.
“We learnt later when we had to submit and buy some documents and we were very shocked,” one politician who is also a businessman confided to this publication this week.
“We then learn that there are some fabricated criminality recorded for us, as to when did we commit those remained secret to the police, but then we had to engage our lawyers on the matter and that is when we were cleared,” said the politician-cum- tenderpreneur.
The lawyers have confirmed engaging the police and that the matters were settled in a gentlemen’s agreement and concluded.
All these happened behind the scenes with the police top brass oblivious only to be confronted by the irked lot, police sources also add. The victimized group who most of them have been fighting lengthy battles with the DIS read malice and did not blink when it was revealed that these were done by the DIS.
“And it was clear that they (DIS) are the ones in this dirty war which we don’t understand. Remember when we sue, it will be the Police at the courts not the DIS and that is why we agreed to a ceasefire more so they also requested that be kept under carpet,” said the victim.
Nonetheless, the Police through its spokesperson Assistant Commissioner, Dipheko Motube, briefly said: “we do not have any system that has been hacked.” On the other hand DIS mouthpiece Edward Robert was not in office this week to comment on the matter.
Reports however say DIS boss, Peter Magosi, who most of the victims accuse of the job, is said to have met his police counterpart Makgophe to put the matter to bed.
COVID-19 RAVAGES POLICE
As frontline workers, Police have not escaped the wrath of Covid-19. Already the numbers of those infected has reached the highest of high and they suggest that they be priorities on vaccine rollout.
“Our job is complicated, firstly we arrest including those who are non-compliant to Covid protocols and we go to accidents and many more. These put us at risk and it seems our superiors are not bothered,” said one police officer this week.
The cops further complain about that working spaces are small, as such expose them to contact the virus.
“Some tests positive and go for quarantine while the rest of the unit will be left without even test carried out. If at all the bosses are serious all the police officers should every now and then be subjected to testing or else we will be no more because of the virus,” added another officer based in Gaborone.
The government has since placed teachers on the priority list for the vaccines, it remains to be seen whether the police, who also man road blocks, will be considered.
“But our bosses should convince the country leadership about this, if not then we are doomed,” concluded a more senior officer.