President Lt. Gen. Dr Seretse Khama Ian Khama’s administration is moving swiftly with pace and strong intentions to amend the contentious Public Service Act of 2008 following a resolution from cabinet recently.
The executive is said to have given the move a nod, and plans are underway to take it to the parliament floor for debating. Indications suggest that the goal is to present the bill at the national assembly’s next sitting (July). It is said that the ruling Botswana Democratic Party (BDP) legislators are expected to knock down opposition party lawmakers in numbers in a move to rubber stamp the amendment bill into law. The said controversial bill (re-enactment) was gazetted on the 5th May 2017.
Some sections which leave a lot to be desired in the contentious bill include section 72 which states that the Directorate of Public Service Management (DPSM) shall be the Secretariat of the Public Service Bargaining Council (PSBC). The section is a departure from the previous arrangement where the Secretariat was appointed by independent bodies appointed by the Council so that it too remains autonomous.
Another controversial section is 73 (1) which posits “the Commissioner may, on application by an interested party, and on reasonable cause being shown, cancel the registration of the Council. (2) Any interested party aggrieved by a decision of the Commissioner to cancel registration of the Council, may appeal against that decision, to the Industrial Court.
In addition, section 74 (3) says: “representatives of both the trade unions and employer under subsections (1) and (2) shall be public officers” together with subsection (4) which mentions that “the Minister shall, from amongst persons who are not representatives, appoint a chairperson and a deputy chairperson” were also said to have been done in bad faith. Still on section 74, subsection (7b) states that 50 percent of the members, excluding the Chairperson and deputy Chairperson, shall constitute a quorum.
Moreover, some debatable sections to be amended also include section 79 (1) which says every trade union recognised under the Act shall be entitled to be a party in the Council and shall be entitled to have only one union representative at the Council. The section continues at subsection (2) citing that every trade union recognised under the Act shall be entitled to appoint public officers as representatives from among its members for purposes of (a) bargaining in good faith with government and b) representing its members in respect of disciplinary proceedings involving acts of serious misconduct.
In terms of subscriptions “government shall not be required to deduct any trade union dues or levies from employees wages on behalf of any trade union save for union membership subscriptions,” reads section 79 (5) another section deemed as part of the controversial amendments to the Public Service Act of 2008. The Act which is being amended, (Public Service Act No 30 of 2008) is said to be a direct result of the ratification of three ILO Conventions by the Botswana Government ratified in 1997.
It was in 2010 that the objective of the 2008 Public Service Act was to provide for a single legislation governing employment of all employees of Government. The Act also was to provide for the establishment of Public Service Bargaining Structures and recognized Public Service trade unions to engage in negotiations and bargaining over issues which have been identified and are matters for negotiation. The Act commenced on the 1st May 2010 and was published in the Botswana Gazette No. 11 of March 2010.
Previously it is understood that there were four pieces of legislation governing employment in the Public Service and these were the Public Service Act CAP 26:01, Unified Local Government Service Act, Teaching Service Act and Tribal Land Act Part II (a) to II (f). It was said then that the use of these separate laws resulted in inconsistencies in the conditions of service and uncoordinated relationships between Government as an employer and some civil servants.
“The Act thus establishes a single public service; ensures consistent terms and conditions of employment for all government employees; and installs systematic collective bargaining processes.” Meanwhile, it remains a mystery on what the government is trying to achieve by the impending amendment to the Act. Some say they are trying to climb down on the workers’ rights to bargain effectively. The new imminent amendments to the Act are seen as a target to the Bargaining Council which gives the government of the day sleepless nights.
Some say it is a drawback also to the current legislatures as it is moving away from the spirit of ILO in terms of standards and conventions of giving power to workers. When reached for comment concerning the amendments, a negotiating partner at the PSBC and part of the tripartite arrangement at ILO, Botswana Federation of Public, Private and Parastatal Sectors Union (BOFEPUSU) Secretary General Tobokani Rari said they were never consulted when the amendments were being made and as such don’t approve of them.
“We are surprised that the bill has now been gazetted contrary to all the promises. We would like to state for the record that there has not been any meaningful consultation,” he told Weekend Post in an interview this week. Rari narrated that they wrote to government requesting that they be given reasons for the intended amendment, but the employer never replied. He added that they nevertheless proceeded to write, providing their views on the intended amendments “hoping for further physical engagement on the same”.
“We then met Director of DPSM in March 2017 where we asked about the engagement on the proposed amendments. At this meeting the Director intimated to us that the amendments were about to be gazetted, but however stated that she would engage the Minister on the possibility of halting the process for further engagements,” the unionist pointed out.
Rari continued: “we then met Minister Mabeo recently during the month of April. We raised the same matter of consultation. At this meeting we came to a common ground that with the assistance of an ILO team of experts, the amendment of all the labour laws would be harmonised and as such we were assured of further engagement.”
During the month of the same month of April, Rari said they also met Assistant Minister in the Office of the President Thato Kwerepe whereat the very issue was raised yet again. According to Rari, Minister Kwerepe assured the delegation that BOFEPUSU would be consulted before gazetting the bill.
The BOFEPUSU SG stressed that the courts have on several occasions dealt with the concept of meaningful consultation or engagement. He said it involves parties exchanging views over a matter. “In this case our view is that there has not been any meaningful consultation,” he said of the Public Service Act pending amendments. What the union federation says about the bill
In a letter to DPSM Director Ruth Maphorisa, BOFEPUSU say they want her to share their reasons for seeking to depart from the existing practice, as per the 2008 Act, in appointing the PSBC Secretariat. In light of this the union stated: “the selection of the secretary of the council has since the inception of the PSBC been the joint responsibility of both government as well as Trade Unions sitting at the PSBC. Additionally, the discharge of the role has never been restricted to public servants.”
In another issue, the union says PSBC has been functioning effectively as a forum for dispute resolution, and it assists with evenly distributing the workload of dispute resolution. “The PSBC is especially the more ideal forum for public servants with grievances against the government as the officers presiding over the disputes are not public servants. It is furthermore open to everyone regardless of whether they are unionised or not and regardless of whether their union forms part of the PSBC,” they contended.
The union asked Maphorisa to shed more light in terms of the rationale for proposing the change so that they may make meaningful representations in respect of the same. “The aforementioned proposed amendment runs contrary to the spirit of negotiating in good faith. The hallmark of negotiating in good faith is that an employer must not take any steps averse to the party negotiating on behalf of its members.” They also asked the DPSM Director to confer a benefit on employees whilst negotiations are ongoing saying it makes a complete mockery of the entire bargaining process and it automatically tilts the scales in favour of government.
They continued: “clause 79 (1) provides that recognition will entitle a union to one seat at the PSBC. The implication of this provision is simply that a union like the National Amalgamated Local, Central Government and Parastatal Workers Union (NALCGPWU”) which has more than 20,000 members will have the same voice as a union like Trainers and Allied Workers Union (“TAWU”) which has less than 200 members.”
With this in mind, BOFEPUSU explained that they failed to appreciate the rationale behind granting a union whose members represent a negligible percentage of the entire workforce the opportunity to speak on behalf of everyone else. They also pointed out that clause 74 incorporates a proviso restricting representatives of trade unions admitted to the PSBC to public officers. “We would like to understand why there has been a drastic departure from ILO standards as well as local case law which has authoritatively pronounced on this issue,” the union highlighted.
They emphasised that the ILO position is to encourage collective bargaining as well as its autonomy. Article 3 of the ILO of 98, they said, provides as follows: Article 3. (1) “Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. 3. (2) the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.”
According to BOFEPUSU, the issues they raised constitute some of concerns in relation to the proposed bill. In light of the foregoing, he said it is critical that government shares what informed the proposed change.
Botswana has made improvements on preventing and ending arbitrary deprivation of liberty, but significant challenges remain in further developing and implementing a legal framework, the UN Working Group on Arbitrary Detention said at the end of a visit recently.
Head of the delegation, Elina Steinerte, appreciated the transparency of Botswana for opening her doors to them. Having had full and unimpeded access and visited 19 places of deprivation of liberty and confidentiality interviewing over 100 persons deprived of their liberty.
She mentioned “We commend Botswana for its openness in inviting the Working Group to conduct this visit which is the first visit of the Working Group to the Southern African region in over a decade. This is a further extension of the commitment to uphold international human rights obligations undertaken by Botswana through its ratification of international human rights treaties.”
Another good act Botswana has been praised for is the remission of sentences. Steinerte echoed that the Prisons Act grants remission of one third of the sentence to anyone who has been imprisoned for more than one month unless the person has been sentenced to life imprisonment or detained at the President’s Pleasure or if the remission would result in the discharge of any prisoner before serving a term of imprisonment of one month.
On the other side; The Group received testimonies about the police using excessive force, including beatings, electrocution, and suffocation of suspects to extract confessions. Of which when the suspects raised the matter with the magistrates, medical examinations would be ordered but often not carried out and the consideration of cases would proceed.
“The Group recall that any such treatment may amount to torture and ill-treatment absolutely prohibited in international law and also lead to arbitrary detention. Judicial authorities must ensure that the Government has met its obligation of demonstrating that confessions were given without coercion, including through any direct or indirect physical or undue psychological pressure. Judges should consider inadmissible any statement obtained through torture or ill-treatment and should order prompt and effective investigations into such allegations,” said Steinerte.
One of the group’s main concern was the DIS held suspects for over 48 hours for interviews. Established under the Intelligence and Security Service Act, the Directorate of Intelligence and Security (DIS) has powers to arrest with or without a warrant.
The group said the “DIS usually requests individuals to come in for an interview and has no powers to detain anyone beyond 48 hours; any overnight detention would take place in regular police stations.”
The Group was able to visit the DIS facilities in Sebele and received numerous testimonies from persons who have been taken there for interviewing, making it evident that individuals can be detained in the facility even if the detention does not last more than few hours.
Moreover, while arrest without a warrant is permissible only when there is a reasonable suspicion of a crime being committed, the evidence received indicates that arrests without a warrant are a rule rather than an exception, in contravention to article 9 of the Covenant.
Even short periods of detention constitute deprivation of liberty when a person is not free to leave at will and in all those instances when safeguards against arbitrary detention are violated, also such short periods may amount to arbitrary deprivation of liberty.
The group also learned of instances when persons were taken to DIS for interviewing without being given the possibility to notify their next of kin and that while individuals are allowed to consult their lawyers prior to being interviewed, lawyers are not allowed to be present during the interviews.
The UN Working Group on Arbitrary Detention mentioned they will continue engaging in the constructive dialogue with the Government of Botswana over the following months while they determine their final conclusions in relation to the country visit.
Standard Chartered Bank Botswana (SCBB) has informed the government that it will not be accepting new loan applications for the Government Employees Motor Vehicle and Residential Property Advance Scheme (GEMVAS and LAMVAS) facility.
This emerges in a correspondence between Acting Permanent Secretary in the Ministry of Finance Boniface Mphetlhe and some government departments. In a letter he wrote recently to government departments informing them of the decision, Mphetlhe indicated that the Ministry received a request from the Bank to consider reviewing GEMVAS and LAMVAS agreement.
He said: “In summary SCBB requested the following; Government should consider reviewing GEMVAS and LAMVAS interest rate from prime plus 0.5% to prime plus 2%.” The Bank indicated that the review should be both for existing GEMVAS and LAMVAS clients and potential customers going forward.
Mphetlhe said the Bank informed the Ministry that the current GEMVAS and LAMVAS interest rate structure results into them making losses, “as the cost of loa disbursements is higher that their end collections.”
He said it also requested that the loan tenure for the residential property loans to be increased from 20 to 25 years and the loan tenure for new motor vehicles loans to be increased from 60 months to 72 months.
Mphetlhe indicated that the Bank’s request has been duly forwarded to the Directorate of Public Service Management for consideration, since GEMVAS and LAMVAS is a Condition of Service Scheme. He saidthe Bank did also inform the Ministry that if the matter is not resolved by the 6th June, 2022, they would cease receipt of new GEMVAS and LAMVAS loan applications.
“A follow up virtual meeting was held to discuss their resolution and SCB did confirm that they will not be accepting any new loans from GEMVAS and LAMVAS. The decision includes top-up advances,” said Mphetlhe. He advised civil servants to consider applying for loans from other banks.
In a letter addressed to the Ministry, SCBB Chief Executive Officer Mpho Masupe informed theministry that, “Reference is made to your letter dated 18th March 2022 wherein the Ministry had indicated that feedback to our proposal on the above subject is being sought.”
In thesame letter dated 10 May 2022, Masupe stated that the Bank was requesting for an update on the Ministry’s engagements with the relevant stakeholder (Directorate of Public Service Management) and provide an indicative timeline for conclusion.
He said the “SCBB informs the Ministry of its intention to cease issuance of new loans to applicants from 6th June 2022 in absence of any feedback on the matter and closure of the discussions between the two parties.” Previously, Masupe had also had requested the Ministry to consider a review of clause 3 of the agreement which speaks to the interest rate charged on the facilities.
Masupe indicated in the letter dated 21 December 2021 that although all the Banks in the market had signed a similar agreement, subject to amendments that each may have requested. “We would like to suggest that our review be considered individually as opposed to being an industry position as we are cognisant of the requirements of section 25 of the Competition Act of 2018 which discourages fixing of pricing set for consumers,” he said.
He added that,“In this way,clients would still have the opportunity to shop around for more favourable pricing and the other Banks, may if they wish to, similarly, individually approach your office for a review of their pricing to the extent that they deem suitable for their respective organisations.”
Masupe also stated that: “On the issue of our request for the revision of the Interest Rate, we kindly request for an increase from the current rate of prime plus 0.5% to prime plus 2%, with no other increases during the loan period.” The Bank CEO said the rationale for the request to review pricing is due to the current construct of the GEMVAS scheme which is currently structured in a way that is resulting in the Bank making a loss.
“The greater part of the GEMVAS portfolio is the mortgage boo which constitutes 40% of the Bank’s total mortgage portfolio,” said Masupe. He saidthe losses that the Bank is incurring are as a result of the legacy pricing of prime plus 0% as the 1995 agreement which a slight increase in the August 2018 agreement to prime plus 0.5%.
“With this pricing, the GEMVAS portfolio has not been profitable to the Bank, causing distress and impeding its ability to continue to support government employees to buy houses and cars. The portfolio is currently priced at 5.25%,” he said. Masupe said the performance of both the GEMVAS home loan and auto loan portfolios in terms of profitability have become unsustainable for the Bank.
Healso said, when the agreement was signed in August 2018, the prime lending rate was 6.75% which made the pricing in effect at the time sufficient from a profitable perspective. “It has since dropped by a total 1.5%. The funds that are loaned to customers are sourced at a high rate, which now leaves the Bank with marginal profits on the portfolio before factoring in other operational expenses associated with administration of the scheme and after sales care of the portfolio,” said the CEO.
The Global Gender Gap Index, a report published by the World Economic Forum annually, has indicated that Botswana is among countries that fare badly when it comes to representation of women in legislative bodies.
The latest Global Gender Gap Index, published last week, benchmarks the current state and evolution of gender parity across four key dimensions (Economic Participation and Opportunity, Educational Attainment, Health and Survival, and Political Empowerment). It is the longest-standing index which tracks progress towards closing these gaps over time since its inception in 2006.
This year, the Global Gender Gap Index benchmarked 146 countries. Of these, a subset of 102 countries have been represented in every edition of the index since 2006, further providing a large constant sample for time series analysis.
Botswana ranks number 66 overall (out of 146 countries), with good rankings in most of the pillars. Botswana ranks 1st in Health and Survival, 7th in the Economic Participation and Opportunity, 22nd in Educational Attainment, and 129th in Political Empowerment.
The Global Gender Gap Index measures scores on a 0 to 100 scale and scores can be interpreted as the distance covered towards parity (i.e. the percentage of the gender gap that has been closed). The cross-country comparisons aim to support the identification of the most effective policies to close gender gaps.
The Economic Participation and Opportunity sub-index contains three concepts: the participation gap, the remuneration gap and the advancement gap. The participation gap is captured using the difference between women and men in labour-force participation rates. The remuneration gap is captured through a hard data indicator (ratio of estimated female-to-male earned income) and a qualitative indicator gathered through the World Economic Forum’s annual Executive Opinion Survey (wage equality for similar work).
Finally, the gap between the advancement of women and men is captured through two hard data statistics (the ratio of women to men among legislators, senior officials and managers, and the ratio of women to men among technical and professional workers).
The Educational Attainment sub-index captures the gap between women’s and men’s current access to education through the enrolment ratios of women to men in primary-, secondary- and tertiary-level education. A longer-term view of the country’s ability to educate women and men in equal numbers is captured through the ratio of women’s literacy rate to men’s literacy rate.
Health and Survival sub-index provides an overview of the differences between women’s and men’s health using two indicators. The first is the sex ratio at birth, which aims specifically to capture the phenomenon of “missing women”, prevalent in countries with a strong son preference. Second, the index uses the gap between women’s and men’s healthy life expectancy.
This measure provides an estimate of the number of years that women and men can expect to live in good health by accounting for the years lost to violence, disease, malnutrition and other factors. Political Empowerment sub-index measures the gap between men and women at the highest level of political decision-making through the ratio of women to men in ministerial positions and the ratio of women to men in parliamentary positions. In addition, the reported included the ratio of women to men in terms of years in executive office (prime minister or president) for the last 50 years.
In the last general elections, only three women won elections, compared to 54 males. The three women are; Nnaniki Makwinja (Lentsweletau-Mmopane), Talita Monnakgotla (Kgalagadi North), and Anna Mokgethi (Gaborone Bonnington North). Four women were elected through Specially Elected dispensation; Peggy Serame, Dr Unity Dow, Phildah Kereng and Beauty Manake. All female MPs — save Dow, who resigned — are members of the executive.
Overall, Botswana has 63 seats, all 57 elected by the electorates, and six elected by parliament. Early this year, Botswana Democratic Party (BDP) secretary general and Gaborone North MP, Mpho Balopi, successfully moved a motion in parliament calling for increment of elective seats from 57 to 61. Balopi contented that population growth demands the country respond by increasing the number of MPs.
In Africa, Botswana play second fiddle to countries like Rwanda, Namibia, South Africa, Burundi, and Zimbabwe who have better representation of women, with Rwanda being the only country with more than 50 percent of women in parliament.
The low number of women in parliament is attributed to Botswana’s current, electoral system, First-Past-the-Post. During the 9th parliament, then MP for Mahalapye East tabled a motion in parliament in which she sort to increase the number of Specially Elected MPs in parliament to augment female representation in the National Assembly.
The motion was opposed famously, by then Specially Elected MP, Botsalo Ntuane, who said the citizens were not in favour of such a move since it dilute democracy, instead suggesting the Botswana should switch to Proportional-Representation-System. Botswana is currently undergoing Constitutional Review process, with the commission, appointed in December, expected to deliver the report to President Mokgweetsi Masisi by September this year.