A case in which the Government, in collaboration with Botswana Public Employees Union (BOPEU) has appealed the judgement of Justice Tshepo Motswagole of the Gaborone High Court which nullified the unilateral decision by Government to award salary increment outside the Public Service Bargaining Council (PSBC) is slated for next week at the Court of Appeal in Gaborone.
The appeal follows government (and BOPEU) application of stay of execution of the said (Motswagole) judgement in May in which Judge Justice Monametsi Gaongalelwe who sat on bench alone “upheld” – pending the current appeal. Prior to the appeal, Botswana Federation of Public, Private and Parastatal Sectors Union (BOFEPUSU) made an application seeking the court to set aside government’s decision which it contended that it was a breach of PSBC as it was not a decision (of the PSBC) process. Most importantly, they also wanted the court to clarify the scope of the PSBC, which is mandated to negotiate salaries and conditions of service for all public servants.
When making the judgement on the matter (currently being appealed), Justice Motswagole stated categorically that: “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,” he said. At the time, BOPEU was not sitting in the PSBC and it is understood that hence the team up with government against their rival BOFEPUSU.
BOFEPUSU, also feeling drained and outdone by the flip flopping on the matter would later withdraw their membership from the PSBC, the decision which is effective to date. However the federation still contends the matter is still relevant to them and they are watching closely. â€¨â€¨“To us this case is still relevant and important as the Bargaining Council is there. It is non – functional currently but it does not mean that it does not exist. In future, we may want to apply for admission,” BOFEPUSU Secretary General Tobokani Rari told Weekend Post in an email conversation.
According to Rari what they are fighting for is a principle that governs industrial councils all over the world, whether the council ultimately gets deregistered and another one concocted “as we hear is the intention of government,” they are of the strong view scope of the PSBC would remain the same as an industrial council. “So to us is an issue of fighting for principle that would ultimately protect the PSBC and the principle of bargaining in this country irrespective of the form that PSBC is composed,” BOFEPUSU SG insisted.
Background of the case until the current appeal
When narrating the marathon case, Rari stated that it is the case that resulted in some public servants (those whose unions were outside the PSBC) getting and increment of a 3% for 12 months (July 2015 to July 2016) and later also getting another increment of a 4% for about three (3) months, while the other section of the public service, those whose unions were admitted into the PSBC, were not getting such salary adjustments. He explained that this was because in an attempt to restore the powers of the PSBC after government has by-passed the council by unilaterally adjusting salaries for public servants in April 2015, BOFEPUSU then approached the Industrial Court to get a interim interdict of the unilateral increment and the by – passing of the PSBC.
He then said the Industrial Court through Judge Rihukhia sort of held that the scope of the PSBC is restricted to those public servants whose unions are admitted into the PSBC. “In taking this view, the decision of the Industrial Court meant that government could adjust conditions of service for those public servants whose unions are not in the PSBC even when the PSBC is still seized with a negotiation process, to the exclusion of those whose unions are admitted into the PSBC, hence the selective and discriminatory 3% and 4% salary adjustment of 2015 and 2016 respectively as mentioned,” Rari further highlighted.
In realizing that the Rihukhia judgment was perpetuating the undermining of the PSBC by limiting its scope and influence, he said BOFEPUSU approached the High Court for a final determination of the matter. “The case was heard at the High Court by Justice Motswagole who agreed with BOFEPUSU that the PSBC is an industrial council hence its scope and decision affect and binds all public servants inclusive of those whose unions that would have at the material time not admitted in the PSBC safe only for those expressly excluded by the PSA.”
Rari said Judge Motswagole went further in his judgment to as a consequence declare that the 3% and the 4% that was being granted exclusively to those public servants whose unions were not in the PSBC was unlawful as adjustment of conditions of service for public servants was purely a preserve of the PSBC. Judge Motswagole as a result interdicted the 4% and 3%, he added.
“However, government and BOPEU fighting on the same corner decided to approach the Court of Appeal on urgency to pray for the stay of Execution of the Motswagole judgment pending the hearing of an appeal against it,” he highlighted. He added that Justice Gaongalelwe, sitting as a single Judge of the Court of Appeal agreed with government and BOPEU and stayed the execution of Motswagole judgment leaving the situation as it was before the Motswagole judgment. According to Rari, the Judgment by Justice Gaongalelwe in upholding the pray by BOPEU and government of a stay of execution of the Motswagole judgment, made a number of decisions that caused serious debates in the judicial circles.
â€¨Some of them he added that it included the issues of the stoppage of payment of the 3% and the 4% to non – unionized and those whose unions are not in the PSBC was still before judge Motswagole on a return date, but Judge Motswagole usurped the powers of another court in determining on it. â€¨He also said while Judge Motswagole entertained the stay, he however decided that the case will come 5 months later in spite of the fact that this case from lower courts has always been urgent as it affected increment of thousands of public servants.
â€¨Rari further pointed out that this is the decision that resulted in BOFEPUSU withdrawing from the PSBC as the decision effectively meant that the members of the BOFEPUSU affiliated unions, which was then admitted into the PSBC, would not enjoy any increment until after October 2017 when the CoA would listen to the scope case. “That was in May 2017, and BOFEPUSU would have to wait for more than 5 months before bargaining while their members would be getting any increment and they had already gone for more than a year with an increment hence the decision by BOFEPUSU to withdraw from the PSBC,” he justified. Meanwhile, in the appeal next week BOFEPUSU has engaged Advocate Alec Freund while government will be represented by Advocate Tim Bruinders.â€¨
The United States (US) will on the 3rd of November 2020 chose between incumbent Donald Trump of the Republicans and former Vice President Joe Biden of the Democrats amid the coronavirus pandemics, which has affected how voting is conducted in the world’s biggest economy.
Trump (74) seeks re-election after trouncing Hillary Clinton in 2016, while Biden (77) is going for his first shot as Democratic nominee after previous unsuccessful spells.
US Presidents mostly succeed in their re-election bid, but there have been nine individuals who failed to garner a second term mandate, the latest being George W H. Bush, a Republican who served as the 41st US President between 1989 and 1993.
Dr Mark Rozell, a Dean of the School of Policy and Government at George Mason University in Arlington, Virginia describes the complex US electoral system that will deliver the winner at the 3rd November elections.
“The founders of our Republic de-centralised authority significantly in creating our constitutional system, which means that they gave an enormous amount of independent power and authority to State and local governments,” Dr Rozell told international media on Elections 2020 Virtual Reporting Tour.
Unlike parliamentary democracies, like Botswana the United States does not have all of the national government elected in one year. They do not have what is commonly called mandate elections where the entire federal government is elected all in one election cycle giving a “mandate” to a particular political party to lead, and instead US have what are called staggered elections, elections over time.
The two house Congress, members of the House of Representatives have two-year long terms of office. Every two years the entire House of Representatives is up for re-election, but senators serve for six years and one third of the Senate is elected every two years.
For this election cycle, US citizens will be electing the President and Vice
President, the entire House of Representatives and one third of the open or contested seats in the Senate, whereas two thirds are still fulfilling the remainder of their terms beyond this year.
An important facet of US electoral system to understand given the federalism nature of the republic, the US elect presidents State by State, therefore they do not have a national popular vote for the presidency.
“We have a national popular vote total that says that Hillary Clinton got three million more votes than Donald Trump or in Year 2000 that Al Gore got a half million more votes than George W. Bush, but we have what is called a State by State winner takes all system where each State is assigned a number of electors to our Electoral College and the candidate who wins the popular vote within each State takes 100 percent of the electors to the Electoral College,” explained Dr Rozell.
“And that is why mathematically, it is possible for someone to win the popular vote but lose the presidency.”
Dr Rozell indicated that in 2016, Hillary Clinton won very large popular majorities in some big population States like California, but the system allows a candidate to only have to win a State by one vote to win a 100 percent of its electors, the margin does not matter.
“Donald Trump won many more States by smaller margins, hence he got an Electoral College majority.”
Another interesting features by the way of US constitutional system, according to Dr Rozell, but extremely rare, is what is called the faithless elector.
“That’s the elector to the Electoral College who says, ‘I’m not going to vote the popular vote in my State, I think my State made a bad decision and I’m going to break with the popular vote,’’ Dr Rozell said.
“That’s constitutionally a very complicated matter in our federalism system because although the federal constitution says electors may exercise discretion, most States have passed State laws making it illegal for any elector to the Electoral College to break faith with the popular vote of that State, it is a criminal act that can be penalized if one is to do that. And we just had an important Supreme Court case that upheld the right of the states to impose and to enforce this restriction”
There are 538 electors at the Electoral College, 270 is the magic number, the candidate who gets 270 or more becomes President of the United States.
If however there are more candidates, and this happens extremely rarely, and a third candidate got some electors to the Electoral College denying the two major party candidates, either one getting a majority, nobody gets 270 or more, then the election goes to the House of Representatives and the House of Representatives votes among the top three vote getters as to who should be the next President.
“You’d have to go back to the early 19th century to have such a scenario, and that’s not going to happen this year unless there is a statistical oddity, which would be a perfect statistical tie of 269 to 269 which could happen but you can just imagine how incredibly unlikely that is,” stated Dr Rozell.
BLUE STATES vs RED STATES
Since the 2000 United States presidential election, red states and blue states have referred to states of the United States whose voters predominantly choose either the Republican Party (red) or Democratic Party (blue) presidential candidates.
Many states have populations that are so heavily concentrated in the Democratic party or the Republican party that there is really no competition in those states.
California is a heavily Democratic State, so is New York and Maryland. It is given that Joe Biden will win those states. Meanwhile Texas, Florida and Alabama are republicans. So, the candidates will spent no time campaigning in those states because it is already a given.
However there are swing states, where there is a competition between about five and 10 states total in each election cycle that make a difference, and that is where the candidates end up spending almost all of their time.
“So it ends up making a national contest for the presidency actually look like several state-wide contests with candidates spending a lot of time talking about State and local issues in those parts of the country,” said Dr Rozell.
High Commissioner of the Federal Government of Nigeria to Botswana, His Excellency Umar Zainab Salisu, has challenged President Dr Mokgweetsi Masisi to move swiftly and lobby Africa’s richest man, Nigerian Billionaire, Aliko Dangote to invest in Botswana.
Speaking during a meeting with President Masisi at Office of President on Thursday Zainab Salisu said Dangote has expressed massive interest in setting up billion dollar industries in Botswana. “We have a lot of investors who wish to come and invest in Botswana , when we look at Botswana we don’t see Botswana itself , but we are lured by its geographic location , being in the centre of Southern Africa presents a good opportunity for strategic penetration into other markets of the region,” said Salisu.
As murder cases and violent incidents involving couples and or lovers continue to be recorded daily, Specially Elected Member of Parliament, Dr Unity Dow has called for more funding of non-governmental organizations and accelerated action from government to come up with laws that could inhibit would-be perpetrators of crimes related to Gender Based Violence (GBV).
Just after Dr Dow had deposited her views on this subject with this reporter, a young man in Molepolole opened fire on a married woman he was having an affair with; and ended her life instantly. While it is this heinous cases that get projected to the public space, the former minister argues that the secrecy culture is keeping other real GBV cases under wraps in many spaces in the country.
The former Minister of Foreign Affairs and International Cooperation said there is GBV all the time in all kinds of places. “We have become accustomed to stories of rapes, marital rapes, defilement of children, beatings and psychological violence and even killings,” she said.
Gender-based violence is a phenomenon deeply rooted in gender inequality, Dow is worried that there is absolutely no social punishment for perpetrators; they will continue to have the same friends, jobs, wives, homes, as before. Yet another factor, she said, is that there is little or no “justice” for victims of GBV.
The renowned activist said justice for GBV victims is not just the jailing of the perpetrator. “Justice for victims means an agile, victim-friendly, accessible (time, money and procedures) and restorative justice system.”
Asked what could be leading to a spike in Gender Based Violence cases or incidents, she observed that there is no one factor to which this spike can be attributed. “The most obvious factor is stress as a result of economic distress and or poverty. Poverty makes one vulnerable and open to compromises that they would otherwise not make. For perpetrators with anger management issues, economic stress leads to lashing out to those closest to them. Another factor is the disintegration of families and family values,” she opined.
According to Dow, no government anywhere in the world is doing enough, period. “We know the places and spaces where women and girls are unsafe. We know the challenges they face in their attempts to exit those spaces and places.” The former Judge of the High Court said GBV undermines the health, dignity, security and autonomy of its victims, yet it remains shrouded in the culture of silence.
Asked what could be done to arrest GBV cases, Dow said it is critical to involve and fund civil society organizations. She observed that much of the progress done in the area of women’s human rights was during the time when Botswana had strong and funded civil society organizations.
“The funding dried up when Botswana was declared a middle-income country but unfortunately external funding was not replaced by local funding,” she acknowledged.
Further Dow said relevant government institutions must be funded and strengthened.
“Thirdly, create a society in which it is not okay to humiliate, rape, beat or kill women. You create this by responding to GBV the same way we have responded to livestock theft. We need to create agile mechanisms that hear cases quickly and allow for the removal of suspected perpetrators from their homes, work places, boards, committees, etc.”
The former Minister said the much anticipated Inter-Ministerial Task Force on Gender Based Violence will have its work cut out for it. According to Dow, GBV is not just a justice issue, it’s not just a gender issue, but rather an issue that cuts across health, education, labour, economic, housing and politics. “As long as any one believes it is someone else’s problem, we will all have the problem,” she said.
In her view, Dow said every work, educational and other place must have a GBV Policy and/or Code of Conduct. “It is important that we acknowledge that the majority of men are law-abiding. The problem is their silence, in the face of injustice,” she observed.