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Courts should be last resort – Dingake tells unions

High Court Judge, Justice Key Oagile Dingake has said it is important that trade unions appreciate the nature and essence of law so that that they don’t regard law as the magic wand to resolve their problems and then overburden the courts with matters that can be resolved by stakeholders.


Speaking at a Botswana Public Employees Union (BOPEU) National Executive Committee congress in Francistown this week, Dingake said unions should use courts only as a last resort. “There is always a danger that the courts’ credibility as impartial arbiters may suffer when the courts are used as sites of struggle in high profile polycentric cases whose resolution is not entirely dependent on textual provisions of the law, but rather on value judgements of the justices of the court,” he said.


He stressed further, “As unions your main asset is the strength of your organizations; your ability to organize, defend and protect your interests. You need to understand and appreciate that law is a technique for the regulation of power. This is true of labour law. Power – the capacity effectively to direct the behaviour of others – is unevenly distributed – in all societies. The power to make and enforce laws is social power. This power rests on many foundations, it may be based on prestige, dominance, wealth and ability to organise. The latter is the source of your power.”


Justice Dingake used the words of Dikgang Moseneke, formerly the Deputy chief Justice of South Africa, and recently retired, would said: “You are your own liberators”. Lawyers and other experts may assist, but ultimately, you are your own liberators. He said in pursuing their demands on what they consider due to them; unions must be reasonable, rational and fair. He indicated that they must refrain from making demands that are irrational and are not justifiable.


“Your demands must always be evidence driven. Nothing should be given that cannot be justified. Similarly, your employers must justify all its positions on the basis of evidence, and nothing less. The culture of justification is part and parcel of a constitutional state ruled in accordance with the constitution, not the whims and caprices of anyone.”


Dingake said unions must do nothing that contravenes the law; especially, the spirit and text of the constitution. Similarly government as the employer must do so; the latter, arguably having a heavier duty to lead by example; because disobedience of the law on its part amounts to saying to the populace that it is fine to disobey the law, the Judge of the High Court said.


He pointed out that in the recent past BOPEU has been hailed as the union of choice by its members; it has been at the forefront of advancing and securing diverse range of benefits, maintaining and improving the living and working conditions of workers’ in Botswana and regulating the relations between workers and employers.


“Indeed it is true that a successful union is one that is internally strong that it may be effective in protecting the interests of workers.  However, history has shown us that the success of unions also lie with their relationship, rapport and liaison with employers as equal partners at the table. Sadly, it has become more evident that there are opposing forces between the workers’ and employers on the subject of Unions and various labour laws.”


Dingake said often at times, employers the world over, have tended to adopt adversarial attitude towards Trade Unions, resisting Unions for the same reasons that workers desire them. “As we celebrate fifty years of self-rule this attitude can and should no longer stand if we are to build a Botswana for all in which its economic success will be based on workers as the drivers of the economy.”  


Justice Dingake observed that the economy will not advance if we don’t take care of the welfare of those who create the country’s wealth, the workers. He argued that workers need a living wage and not so much minimum wage.  He said a minimum wage is about setting a wage floor under which no worker can earn.


“A living wage on the other hand is the minimum income that necessary for a worker to meet his needs and that of his or her family. The scales of justice needs to be delicately balanced so that the wage regime does not in anyway imperil the development of the country. Slave wages are known undermine economic growth,” he explained.


Justice Dingake urged unions to pay attention, to the matter of decent of decent work as defined by the ILO. He said the decent work agenda focusses on job creation, rights at work, social protection and social dialogue, with gender equality. The term decent work is promoted through the Decent Agenda and was coined by the Director General of the International Labour Organization (ILO), Mr. Juan Somavia in 1999, who defined decent work as “productive work in which rights are protected, which generates an adequate income with adequate social protection.

 

It marks the high road to economic and social development, a road in which employment, income and social protection can be achieved without compromising workers’ rights and sound standards” The ILO is also committed to promoting policies on wages and incomes that ensure a just share for all.


Justice Dingake urged all stakeholders in the labour relations to work together as equal partners in the interest of our country. He observed that a motivated and hardworking workforce is in the interest of the country. The Judge further advised that the workforce must engage with the employer with respect and their demands must be evidence based.


“Similarly, the government response or position must be evidence based. Trade Unions are critical in maintaining workplace stability. A motivated public service tends to render high quality service to the public. In a properly functioning democracy no law should offend the values of freedom, human dignity and non discrimination. In our constitutional state, the above values define who we are as a people,” he said.

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Plight of GBV amid Covid-19

26th November 2020
16-days-of-activism

The United Nation’s UNiTE campaign has marked the beginning of 16 days of activism against Gender-based Violence which will end in December 10 2020, under the global theme, “Orange the world: Fund, Respond, Prevent, Collect!”

The UN Secretary-General’s UNiTE by 2030 to End Violence against Women campaign (UNiTE campaign), managed by UN Women — is a multi-year effort aimed at preventing and eliminating violence against women and girls around the world.

The UN Women’s generation equality campaign emphasises the call for global action to bridge funding gaps, ensure essential services for survivors of violence during the COVID-19 crisis, focus on prevention, and collection of data that can improve life-saving services for women and girls.

Furthermore, the UN Secretary General’s report maintains that this year is like no other. Even before Covid-19 hit, violence against women and girls had reached pandemic proportions.

Globally, according to United Nations, 243 million women and girls were abused by an intimate partner in the past year.

Meanwhile, less than 40 percent of women who experience violence report it or seek help.

Evidently they suggest that as countries implemented lockdown measures to stop the spread of the coronavirus, violence against women, especially domestic violence, intensified- in some countries, calls to helplines have increased five-fold.

“In others, formal reports of domestic violence have decreased as survivors find it harder to seek help and access support through the regular channels. School closures and economic strains left women and girls poorer, out of school and out of jobs, and more vulnerable to exploitation, abused, forced marriage, and harassment,” said the UN.

According to the UN, in April 2020 as the pandemic spread across the world, the UN Secretary-General called for “peace at home”, and 146 member states responded with their strong statement of commitment.

“In recent months 135 countries have strengthened actions and resources to address violence against women as part of the response to Covid-19. Yet, much more is needed,” said the report.

Moreover, they submit that as today, although the voices of activists and survivors have reached a crescendo that cannot be silenced or ignored, ending violence against women will require more investment, leadership and action.

“It cannot be sidelined; it must be part of every country’s national response, especially during the unfolding COVID-19 crisis,” contended the UN report.

For the 16 Days of Activism, UN Women handed over the mic to survivors, activists and UN partners on the ground, to tell the story of what happened after COVID-19 hit.

According to Dubravka Šimonovic, special rapporteur on violence against women, there is urgent need to end pandemic of femicide and violence against women.

Ahead of the International Day for the Elimination of Violence against Women, she emphasizes that as the world grapples with the devastating impact of the COVID-19 pandemic and its negative impact on women, a pandemic of femicide and gender-based violence against women is taking the lives of women and girls everywhere.

Therefore, she is calling on all States and relevant stakeholders worldwide to take urgent steps to prevent the pandemic of femicide or gender related killings of women, and gender-based violence against women, through the establishment of national multidisciplinary prevention bodies or femicide watches/observatories on violence against women.

These bodies should be mandated to 1) collect comparable and disaggregated data on femicide or gender-related killings of women; 2) conduct an analysis of femicide cases to determine shortcomings, and recommend measures for the prevention of such cases, and 3) ensure that femicide victims are not forgotten by holding days of remembrance.

“Data this mandate has collected since 2015 through my Femicide Watch initiative corroborates the data available from the UN Office on Drugs and Crime, and indicates that among the victims of all intentional killings involving intimate partners, more than 80% of victims are women.  Many of these femicides are preventable. Since 2015, a growing number of States have either established femicide watches or observatories, and in an increasing number of countries, it is the independent human rights institutions, civil society organizations, women’s groups and/or academic institutions that have established femicide watches or observatories,” she argued.

GBV in Botswana

UNFDP (United Nations Population Fund) Botswana cites that, locally over 67 percent of women have experienced abuse, which is over double the global average.

“Gender-based violence undermines the health, dignity, security and autonomy of its victims, yet it remains shrouded in a culture of silence and normalization. Victims of violence, the majority of which are women and girls, can suffer sexual and reproductive health consequences, including forced and unwanted pregnancies, sexually transmitted infections including HIV, and even death,” indicated UNFDP

In his 2020 State of the Nation Address (SONA) he delivered on Monday 9th November at the Gaborone International Convention Centre (GICC), President Mokgweetsi Masisi said government is concerned about the snowballing of GBV incidences, saying, they have prioritized drafting of a Sexual Offenders Bill to be tabled during the sitting of the 12th Parliament.

“The Bill will establish a Sex Offenders’ Registry to record and publicise names and particulars of all persons convicted of sexual offences. To date twelve districts have set up the District Gender Committees in Chobe, Kweneng, Kgatleng, Kgalagadi, Maun, Serowe, Selibe-Phikwe, North East, Bobirwa Sub District, Mabutsane Sub District, Goodhope Sub District as well as Mahalapye Sub District. These committees will promote gender equality and women’s empowerment, and also address gender based violence,” Masisi said.

The President highlighted that the Botswana Police Service, which has been dealing a lot with GBV cases has taken swift action and introduced a Toll-Free number for reports on gender based violence. He further indicated that the Police will establish a Gender and Child Protection Unit

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Transgender persons in Botswana live a miserable life

23rd November 2020
Transgender persons

An international report complied in South Africa dubbed ‘Legal Gender Recognition in Botswana’ says that the transgender and gender non-conforming people in Botswana live a miserable life. The community experiences higher levels of discrimination, violence and ill health.

In this report, it has been indicated that this is because their gender identity, which does not conform to narrowly define societal norms, renders them more vulnerable. Gender identity is a social determinant of health, which means that it is a factor that influences people’s health via their social context, their communities and their experiences of social exclusion. The Ministry of Health and Wellness has recognized this, and transgender people are considered a vulnerable population under the Botswana Second National Strategic Framework for HIV and AIDS 2010-2017.

In a recent study that shed light on the lived experiences of transgender and gender non-conforming people in Botswana, transgender persons often experience discrimination because of their gender identity and expression. The study was conducted by the University of Cape Town, LEGABIBO, BONELA, as well as Rainbow Identity Association and approved by the Health Ministry as well as the University of Botswana.

Of the 77 transgender and gender non-conforming people who participated in the study, less than half were employed. Two thirds, which is approximately 67% said that they did not have sufficient funds to cover their everyday needs. Two in five had hidden health concerns from their healthcare provider because they were afraid to disclose their gender identity.

More than half said that because of their gender identity, they had been treated disrespectfully at a healthcare facility (55%), almost half (46%) said they had been insulted at a healthcare facility, and one quarter (25%) had been denied healthcare because of their gender identity.

At the same time, the ‘Are we doing right’ study suggests that transgender and non-conforming people might be at higher risks of experiencing violence and mental ill-health, compared to the general population. More than half had experienced verbal embarrassment because of their gender identity, 48% had experienced physical violence and more than one third (38%) had experienced sexual violence.

The study showed that mental health concerns were high among transgender and gender non-conforming people in Botswana. Half of the transgender and gender non-conforming study participants (53%) showed signs of depression. Between one in four and one in six showed signs of moderate or severe anxiety (22% among transgender women, 24% among transgender men and 17% among gender non-conforming people).

Further, the study revealed that many had attempted suicide: one in three transgender women (32%), more than one in three transgender men (35%) and three in five gender non-conforming people (61%).

International research, as well as research from Botswana, suggests that not being able to change one’s gender marker has a negative impact on access to healthcare and mental health and wellbeing. The study further showed that one in four transgender people in Botswana (25%) had been denied access to healthcare. This is, at least in part, linked to not being able to change one’s gender marker in the identity documents, and thus not having an identity document that matches one’s gender identity and gender expression.

In its Assessment of Legal and Regulatory Framework for HIV, AIDS and Tuberculosis, the Health Ministry noted that “transgender persons in Botswana are unable to access identity documents that reflect their gender identity, which is a barrier to health services, including in the context of HIV. In one documented case, a transwoman’s identity card did not reflect her gender identity- her identity card photo indicated she was ‘male’. When she presented her identity card at a health facility, a health worker called the police who took her into custody.”

The necessity of a correct national identity document goes beyond healthcare. The High Court of Botswana explains that “the national identity document plays a pivotal role in every Motswana’s daily life, as it links him or her with any service they require from various institutions. Most activities in the country require every Motswana to produce their identity document, for identification purposes of receiving services.”

According to the Legal Gender Recognition in Botswana report, this effectively means that transgender, whose gender identity and expression is likely to be different from the sex assigned to them at birth and from what is recorded on their identity document, cannot access services without risk of denial or discrimination, or accusations of fraud.

In this context, gays and lesbians advocacy group LEGABIBO has called on government through the Department of Civil and National Registration to urgently implement the High Court rulings on gender marker changes. As stated by the High Court in the ND vs Attorney General of Botswana judgement, identity cards (Omang) play an important role in the life of every Motswana. Refusal and or delay to issue a Motswana with an Omang is denying them to live a complete and full-filing life with dignity and violates their privacy and freedom of expression.

The judgement clarified that persons can change their gender marker as per the National Registrations Act, so changing the gender marker is legally possible. There is no need for a court order. It further said the person’s gender is self-identified, there is no need to consult medical doctors.

LEGABIBO also called on government to develop regulations that specify administrative procedure to change one’s gender marker, and observing self-determination process. Further, the group looks out for government to ensure members of the transgender community are engaged in the development of regulations.

“We call on this Department of Civil and National Registration to ensure that the gender marker change under the National Registration Act is aligned to the Births and Deaths Registry Act to avoid court order.

Meanwhile, a gay man in Lobatse, Moabi Mokenke was recently viciously killed after being sexually violated in the streets of Peleng, shockingly by his neighbourhood folks. The youthful lad, likely to be 29-years old, met his fate on his way home, from the wearisome Di a Bowa taverns situated in the much populated township of Peleng Central.

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Khato Civils fights back, dares detractors

23rd November 2020
Khato-civil

CEO of Khato Civils Mongezi Mnyani has come out of the silence and is going all way guns blazing against the company’s adversaries who he said are hell-bent on tarnishing his company’s image and “hard-earned good name”

Speaking to WeekendPost from South Africa, Mnyani said it is now time for him to speak out or act against his detractors. Khato Civils has done several projects across Africa. Khato Civils, a construction company and its affiliate engineering company, South Zambezi have executed a number of world class projects in South Africa, Malawi and now recently here in Botswana.

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