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Gov’t amends Public Service Act

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.

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Civil Service volatility: Democracy vs Bureaucracy

19th April 2021
President Masisi

Here is how one Permanent Secretary encapsulates the clear tension between democracy and bureaucracy in Botswana: “President Mokgweetsi Masisi’s Government is behaving like a state surrounded with armed forces in order to capture it or force its surrender. The situation has turned so volatile, for tomorrow is not guaranteed for us top civil servants.

These are the painful results of a personalized civil service in our view as permanent secretaries”. Although his deduction of the situation may be summed as sour grapes because he is one of the ‘victims’ of the reshuffle, he is convinced this is a perfect description of the rationale behind frequent changes and transfers characterising the current civil service.

The result of it all, he said, is that “there is too much instability at managerial and strategic levels of the civil service leading to a noticeable directionless civil service.” He continued: “Changes and transfers are inevitable in the civil service, but to a permissible scale and frequency. Think of soccer team coach who changes and transfers his entire squad every month; you know the consequences?”

The Tsunami has hit hard at critical departments and Ministries leaving a strong wave of uncertainty, many demoralised and some jobless. In traditional approaches to public administration, democracy gives the goals; and bureaucracy delivers the technical efficiency required for implementation. But the recent moves in the civil service are indicative of conflicting imperatives – the notion of separation between politicians and administrators is becoming blurred by the day.

“Look at what happened to Prisons and BDF where second in command were overlooked for outsiders, and these are the people who had sacrificially served for donkey’s years hoping for a seat at the ladder’s end. The frequency of the changes, at times affecting the same Ministry or individual also demonstrates some level of ineptitude, clumsiness and lack of foresight from those in charge,” remarked the PS who added that their view is that the transfers are not related to anything but “settling scores, creating corruption opportunities and pushing out perceived dissident and former president, Ian Khama’s alleged loyalists and most of these transfers are said to be products of intelligence detection.”

Partly blaming Khama for the mess and his unwillingness to let go, the PS dismissed Masisi for falling to the trap and failing to outgrow the destructive tiff. “Khama is here to stay and the sooner Masisi comes to terms with the fact that he (Masisi) is the state President, the better. For a President to still be making these changes and transfers signals signs of a confused man who has not yet started rolling his roadmap, if at all it was ever there. I am saying this because any roadmap comes with key players and policies,” he concluded.

The Ministry of Health and Wellness seems to be the most hard-hit by the transfers, having experienced three Permanent Secretaries changes within a year and a half. Insiders say the changes have everything to do with the Ministry being the centre of COVID-19 tenders and economic opportunities. “The buck stops with the PS and no right-thinking PS can just allow glaring corruption under his watch as an accounting officer. Technocrats are generally law abiding, the pressure comes with politically appointed leaders racing against political terms to loot,” revealed a director in the Ministry preferring anonymity.

The latest transfer of Kabelo Ebineng she says was also motivated by his firm attitude against the President’s blue-eyed Task Team boys. “The Task Team wants to own the COVID-19 pandemic and government interventions and always cry foul when the Ministry reasserts itself as mandated by law,” said the director who added that Masisi who was always caught between the crossfire decided on sacrificing Ebineng to the joy of his team as they (Task Team) were in the habit of threatening to resign citing Ebineng as the problem.

Ebineng joins the Office of the President as a deputy Coordinator (government implementation and coordination office).The incoming PS is the soft-spoken Grace Muzila, known and described by her close associates as a conformist albeit knowledgeable.

One of the losers in the grand scheme is Thato Raphaka who many had seen as the next PSP because of his experience and calm demeanour following a declaration of interest in the Southern African Development Community (SADC) Secretary post by the current PSP, Elias Magosi.

But hardly ten months into his post, Raphaka has been transferred out to the National Strategy Office in what many see as a demotion of some sort. Other notable changes coming into OP are Pearl Ramokoka formerly with the Employment, Labour and Productivity Ministry coming in as a Permanent Secretary and Kgomotso Abi as director of Public Service Reforms.

One of the ousted senior officers in the Office of the President warned that there are no signs that the changes and transfers will stop anytime soon: “If you are observant you would have long noticed that the changes don’t only affect senior officers but government decisions as well. A decision is made today and the government backtracks on it within a week. Not only that, the President says this today, and his deputy denies it the following day in Parliament,” he warned.

Some observers have blamed the turmoil in the civil service partly to lack of accountable presidential advisers or kitchen cabinet properly schooled on matters of statecraft. They point out that politicians or those peripheral to them should refrain from hampering the technical and organizational activities of public managers – or else the party (reshuffling) won’t stop.

In the view expressed by some Permanent Secretaries, Elias Magosi, has not really been himself since joining the civil service; and has cut a picture of indifference in most critical engagements; the most notable been a permanent secretaries platform which he chairs. As things stand there is need to reconcile the imperatives of democracy and democracy in Botswana. Peace will rein only when public value should stand astride the fault that runs between politicians and public managers.

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Morupisi fights for freedom in court

19th April 2021
morupisi

Former Permanent Secretary to the President, Carter Morupisi, is fighting for survival in a matter in which the State has charged him and his wife, Pinnie Morupisi, with corruption and money laundering.

Morupisi has joined a list of prominent figures that served in the previous administration and who have been accused of corruption during their tenure in office. While others have been emerging victorious, Morupisi is yet to find that luck. The High Court recently dismissed his no case to answer application.

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Pressure mounts on Biden to suspend Covid-19 vaccine patents

19th April 2021
Joe Biden

United States President, Joe Biden, is faced with a decision to make relating to the Covid-19 vaccine intellectual property after 175 former world leaders and Nobel laurates joined the campaign urging the US to take “urgent action” to suspend intellectual property rights for Covid-19 vaccines to help boost global inoculation rates.

According to the world leaders, doing so would allow developing countries to make their own copies of the vaccines that have been developed by pharmaceutical companies without fear of being sued for intellectual property infringements.

“A WTO waiver is a vital and necessary step to bringing an end to this pandemic. It must be combined with ensuring vaccine know-how and technology is shared openly,” the signatories, comprising more than 100 Nobel prize-winners and over 70 former world leaders, wrote in a letter to US President Joe Biden, according to Financial Times.

A measure to allow countries to temporarily override patent rights for Covid related medical products was proposed at the World Trade Organization by India and South Africa in October, and has since been backed by nearly 60 countries.

Former leaders who signed the letter included Gordon Brown, former UK Prime Minister; François Hollande, former French President; Mikhail Gorbachev, former President of the USSR; and Yves Leterme, former Belgian Prime Minister.

In their official communication, South Africa and India said: “As new diagnostics, therapeutics and vaccines for Covid-19 are developed, there are significant concerns [about] how these will be made available promptly, in sufficient quantities and at affordable prices to meet global demand.”

While developed countries have been able to secure enough vaccine to inoculate their citizens, developing countries such as Botswana are struggling to source enough to swiftly vaccine their citizens, something which world leaders believe it would work against global recovery therefore proving counter-productive.

Since the availability of vaccines, Botswana has been able to secure only 60 000 doses of vaccines, 30 000 as donation as from the Indian government, while the other 30 000 was sourced through COVAX facility.  Canada, has pre-ordered vaccines in surplus and it will be able to vaccinate each of its citizens six times over. In the UK and US, it is four vaccines per person; and two each in the EU and Australia.

For vaccines produced in Europe, developing countries are forced to pay double what European countries are paying, making it more expensive for already financially struggling economies.  European countries however justify the price of vaccines and that they deserve to buy them cheap since they contributed in their development.

It is evident that vaccines cannot be made available immediately to all countries worldwide with wealthy economies being the only success story in that regard, something that has been referred to as a “catastrophic moral failure”, head of the World Health Organisation (WHO), Tedros Adhanom Ghebreyesus.

The challenge facing developing countries is not only the price, but also the capacity of vaccine manufactures to be able to do so to meet global demand within a short time. The proposal for a patent waiver by India and South Africa has been rejected by developed countries, known for hosting the world leading pharmaceutical companies such US, European Union, the United Kingdom, and Switzerland.

According to the Financial Times, US business groups including pharmaceutical industry representatives, have urged Biden to resist supporting a waiver to IP rules at the WTO, arguing that the proposal led by India and South Africa was too “vague” and “broad”.

The individuals who signed the letter, including Nobel laureates in economics as well as from across the arts and sciences, warned that inequitable vaccine access would impact the global economy and prevent it from recovering.

“The world saw unprecedented development of safe and effective vaccines, in major part thanks to US public investment,” the group wrote. “We all welcome that vaccination rollout in the US and many wealthier countries is bringing hope to their citizens.”

“Yet for the majority of the world that same hope is yet to be seen. New waves of suffering are now rising across the globe. Our global economy cannot rebuild if it remains vulnerable to this virus.”
The group warned that fully enforcing IP was “self-defeating for the US” as it hindered global vaccination efforts. “Given artificial global supply shortages, the US economy already risks losing $1.3tn in gross domestic product this year.”

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