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Defending and Preserving Workers’ Agenda in the Midst of Repressive Laws

JUSTICE KEY DINGAKE

Permit me to express my sincere gratitude to the organizers of this event, for the opportunity to share some critical reflections with you consistent with your theme, namely,” Defending and preserving Workers Agenda in the Midst of Repressive Laws”.

It is not quite often that a judge of the Republic interacts with organized labour in the manner afforded by this opportunity as quite often we meet in adversarial circumstances in which the engagement is mediated by hierarchical power relations and other antagonistic relationships.

 

And since you are part of the executive, in a constitutional sense, I wondered whether my presence here does not violate the separation of powers that enjoins me to keep to my lane and and not to trespass into your lane. I am certain though that this intellectual moment we share does no violence to the principle of separation of powers.

 

I must begin the substantive engagement with your theme by problematizing labour relations in the public service so that you appreciate the space you occupy and operate in.  Labour relations in the public service is not the same as with the private sector.

 

Herein lies the distinction: First, the state is in the unique position of being both the employer and a chief determinant of national economic and social policies which policies may directly impact on employment matters.

 

This raises the issue of the government as an employer being in some way a judge in its own cause. Secondly, workers in government discharge services which have serious impact on members of the public generally, hence the very apt description as members of the public service and the Act that regulates your operations, styled, “Public Service Act”.

The consequence of the above is that unlike contracts of employment in the private sector, the failure of the state to deliver requisite and proper services to the public raises both political and economic questions.

Thirdly, salaries and wages payable to government employees, are a component of national budget, which in all democracies require the approval of the elected legislature. This raises grave constitutional questions, namely, to what extent should the legislature be bound by prior commitments by the executive arm of the government to award certain salary increases? And more fundamentally, how far should organized labour like BOPEU be permitted to exert pressure on a democratically legislature, or the executive  to extract certain concessions?

 

Your theme seems to suggest that you hold the view that labour laws in Botswana may be repressive making it difficult for you to defend worker’s rights. I make no findings of fact on the state of labour law; but wish to remind you that Botswana is a constitutional democracy in terms of which the constitution is the supreme law of the land and any law inconsistent with it may be declared by our courts to be constitutionally non compliant and therefore invalid.

 

In engaging on your theme, it seems to me to be imperative, to bring on board certain relevant contextual considerations that illuminate our conversation. To this extent it is important  to recall  and remind ourselves of the historic Declaration of Philadelphia that sets out the aims and purposes of the International Labour Organization. The Declaration proclaims, among other things that:

“ Labour is not a commodity; freedom of expression and association are essential to sustained progress; poverty anywhere constitutes a danger to prosperity anywhere; the war against want requires to be carried out with unrelenting vigor within each nation, and by continuous and concerted international effort in which the representative of workers and employers, enjoying equal status with those of governments, join with them in free discussion and democratic decision with a view to promotion of the common welfare”.

 

The lessons of history and indeed the lessons derived from the Declaration, that none amongst us gathered here, today,  can credibly contest, is that lasting peace, development and social justice can not be achieved in any society if labour is still regarded as a commodity and deserving to be chained and repressed.

 

All human beings, (and workers are no less human beings), have a right to pursue their rights to work under conditions of freedom and dignity, characterized by mutual respect and openness, economic security and equal opportunity.

 

This can only be so if organized labour is regarded as an equal partner in economic development agenda. We need, as a nation, to engage in transformational dialogue in which organized labour, employers and government can genuinely see each other as equals in the development project of our republic.

 

Trade Unions exist for one primary purpose: to articulate and defend the interests of the workers. Historically, the attitude of the law to trade unions was one of hostility. They were regarded not as equal partners but some kind of conspiratorial group whose interests are inimical to that of the nation state.

 

This thinking, to the extent that some remnants of it may still be found in our statute books need to be discarded in favour of the new thinking that regards organized labour as a genuine partner in development. Our labour law must mirror the values of human dignity and freedom reflected in the letter and spirit of our constitution and international legal instruments which Botswana as a member of civilized community of nations has ratified – thereby signalling its desire to live by those principles.

 

Labour law is a sensitive subject; it is located at an intersection between, economics, politics and law. It is a compromise  between organized labour – a very powerful socio-economic force and the employers of labour, on the other hand; an equally powerful socio-economic force.

 

The balance between the two is delicate; and if not handled with care it can destabilize and derail the development agenda of the country. The courts are custodians of this delicate balance – and they miss the delicacy at a great cost to the nation.

 

No area of Botswana labour law has developed as rapidly in the past decade or so as the one regulating the relationship between organized labour and employers. This rapid development was fuelled by Botswana’s domestication  of a number of the ILO core conventions in 2004 such as Labour Relations (Public Service) Convention, Freedom of Association and the Protection of the Right to Organize Convention, and the Right to Organize and Collective Bargaining Convention.

 

The above Conventions seek to ensure that the rights of workers to form their own organizations, to defend their interests, to freely associate and bargain collectively are respected in practice; because labour is not a commodity. The right to strike which is recognised by international labour law is an important aspect of the right to collective bargaining.

 

The Committee on Freedom of Association has in the past observed that:

“The right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests”.

The right to strike is not expressly recognized in the constitution, but is statutorily available, subject to conditions stated therein. It is generally accepted that such a right may be restricted with respect to essential services.

 

The right to strike often goes together with the right to lock out by employers. There is a debate whether the two rights enjoy equal weighting. The South African Constitutional Court gives the right to strike more weight than the right to lock out, because in the view of the court, “ Collective bargaining is based on the recognition of the fact that employers enjoy greater social and economic power than individual workers”.

 

It was stated in the South African case of Metal and Electrical Workers Union of South Africa v National Panasonic Union ,  1991(12) ILJ 533, per Conrandie J, that:

“ A strike is like a boxing match. The opponent tries within the rules to hurt the other as much as possible. There is a referee to see that the rules are observed. The Court is the referee. It does not intervene simply because one of the opponents is being hurt – that is the idea of the contest.

 

The referee may intervene when one of them is struck a blow below the belt – the parties to an an industrial contest take time and trouble to shape up their fight, there are all kinds of things which they are expected to do before they are permitted to enter the ring”.

 

On the matter of restriction of the right to strike with respect to essential services, Convention 87 confines, “ essential services for the purpose of limiting the right to strike to “ services the interruption of which would endanger life, personal safety or the health of part of or the whole of the population”. This view has been repeated on many occasions by the ILO Committee of Experts on the Application of Convention 87.

 

The jurisprudence of the Committee of Experts and writtings of labour law scholars often stress that to be compatible with fundamental right to collective bargaining by employees, essential services are to be given a strict and narrow meaning.

 

Earlier, I indicated that we are a constitutional democracy governed by a supreme constitution that entrenches the values of freedom, anti-discrimination  and human dignity. Parliament is enjoined, in fact, instructed by the constitution, to pass laws for the good order and government of the republic.

 

They are not permitted to pass laws as they please; laws  that may offend the constitution. Where statutory law is vague or unclear it must be interpreted in a manner that will give effect to the Constitution and where appropriate international law.

 

The Industrial Court understands the sensitivity of labour law that I earlier spoke of. In interpreting and applying statute law it has sought to ensure that its decisions, are fair and informed by international labour law. The understanding being that the ultimate objective of law is the welfare of society.

 

In its decisions the industrial court has always insisted that any dismissal of an employee, post probation, must be procedurally and substantively fair. In terms of the jurisprudence of the industrial court no employee can be dismissed at the whims and caprices of the employer without a valid reason. This jurisprudence has contributed to job security. In consequence of this jurisprudence our industrial court is held high esteem by other labour courts across the world and the international labour organization.

 

Any jurisprudence to the contrary; and that pays lip service to job security runs counter to the celebrated jurisprudence of the Industrial court as I have sought to indicate. Perhaps in order to ensure consistent jurisprudence on matters impacting on job security at the work place, it has become important to revisit the idea of the Labour Appeals Court that is constituted by experts in the field; experts that fully understand and appreciate the precise location of labour law at the intersection I earlier spoke of and the delicacy of labour law; and more importantly its role as an enabler of economic development. Labour must assist in ensuring that labour is productive and is not demotivated unnecessarily.

 

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; and 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.

 

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.

In short, as my revered brother and friend Justice Dikgang Moseneke, formerly the Deputy chief Justice of South Africa, and recently retired, would say: “You are your own liberators”. Lawyers and other experts may assist, but ultimately, you are your own liberators.

 

In pursuing your demands on what you consider due to you; you must be reasonable, rational and fair. You 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.

You 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.

 

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.

 

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.  

 

Our economy will not advance if we don’t take care of the welfare of those who create the country’s wealth, the workers. To this extent, workers need a living wage and not so much minimum wage. 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.

 

Mr President, I urge you to pay attention, to the matter of decent of decent work as defined by the ILO. 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.

 

I must conclude my reflections by urging all stakeholders in the labour relations to work together as equal partners in the interest of our country. A motivated and hard working workforce is in the interest of the country. 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.

 

Speech by Professor Justice Oagile Bethuel Key Dingake Judge of the High Court (Botswana); Judge of Residual Special Court (Sierra Leone) at the BOPEU NEC congress in Francistown

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Botswana to Become a Vaccinated Nation: Pandemic Anxiety Over?

30th March 2021

OSCAR MOTSUMI

This is a question that should seriously exercise the mind of every Botswana citizen and every science researcher, every health worker and every political leader political.

The Covid-19 currently defines our lives and poses a direct threat to every aspect and every part of national safety, security and general well-being. This disease has become a normative part of human life throughout the world.

The first part of the struggle against the murderous depredation of this disease was to protect personal life through restrictive health injunctions and protocols; the worst possibly being human isolation and masks that hid our sorrows and lamentations through thin veils. We suffered that humiliation with grace and I believe as a nation we did a great job.

Now the vaccines are here, ushering us into the second phase of this war against the plague; and we are asking ourselves, is this science-driven fight against Covid-19 spell the end of pandemic anxiety? Is the health nightmare coming to an end? What happy lives lie ahead? Is this the time for celebration or caution? As the Non State Actors, we have being struggling with these questions for months.

We have published our thoughts and feelings, and our research reviews and thorough reading of both the local and international impacts of this rampaging viral invasion in local newspapers and social media platforms.

More significantly, we have successfully organised workshops about the impact of the pandemic on society and the economy and the last workshop invited a panel of health experts, professionals, and public administers to advance this social dialogue as part of our commitment to the tripartite engagement we enjoy working with Government of Botswana, Civil Society and Development partners. These workshops are virtual and open to all Batswana, foreign diplomatic missions based in Gaborone, UN agencies located in Gaborone and international academic researchers and professional health experts and specialists.

The mark of Covid-19 on our nation is a painful one, a tragedy shared by the entire human race, but still a contextually painful experience. Our response is fraught with grave difficulties; limited resources, limited time, and the urgency to not only save lives but also avert economic ruin and a bleak future for all who survive. Several vaccines are already in the  market.

Parts of the world are already doing the best they can to trunk the pestilential march of this disease by rolling out mass-vaccinations campaigns that promise to evict this health menace and nightmare from their public lives. Botswana, like much of Africa, is still up in the disreputable, and, unenviable, preventative social melee of masked interactions, metered distances, contactless commerce.

We remain very much at the mercy of a marauding virus that daily runs amuck with earth shattering implications for the economy and human lives. And the battle against both infections and transmissions is proving to be difficult, in terms of finance, institutional capacities and resource mobilization. How are we prepared as government, and as citizens, to embrace the impending mass-vaccinations? What are the chances of us  succeeding at this last-ditch effort to defeat the virus? What are the most pressing obstacles?

Does the work of vaccines spell an end to the pandemic anxieties?

Our panellists addressed the current state of mass-vaccination preparedness at the Botswana national level. What resources are available? What are the financial, institutional and administrative operational challenges (costs and supply chains, delivery, distribution, administering the vaccine on time, surveillance and security of vaccines?) What is being done to overcome them, or what can be done to overcome them? What do public assessments of preparedness tell us at the local community levels? How strong is the political will and direction? How long can we expect the whole exercise to last? At what point should we start seeing tangible results of the mass-vaccination campaign?

They also addressed the challenges of the anticipated emerging Vaccinated Society. How to fight the myths of vaccines and the superstitions about histories of human immunizations? What exactly is being done to grow robust local confidence in the science of vaccinations and the vaccines themselves? More significantly, how to square these campaigns vis-vis personal rights, moral/religious obligations?

What messages are being sent out in these regards and how are Batswana responding? What about issues of justice and equality? Will we get the necessary vaccines to everyone who wants them? What is being done to ensure no deserving person is left behind?

They also addressed issues of health data. To accomplish this mass-vaccination campaign and do everything right we need accurate and complete data. Poor data already makes it very hard to just cope with the disease. What is being done to improve data for the mass-vaccination campaign? How is this data being collected, aggregated and prepared for real life situation/applications throughout Botswana in the coming campaign?

We know in America, for example, general reporting and treatment of health data at the beginning of vaccinations was so poor, so chaotic and so scattered mainstream newspapers like The Atlantic, Washington Post and the New York Times had to step in, working very closely with civil society organizations, to rescue the situation. What data-related issues are still problematic in Botswana?

To be specific, what kind of Covid-19 data is being taken now to ready the whole country for an effective and efficient mass-vaccination program?

Batswana must be made aware that the  end part of vaccination will just mark the beginning of a long journey to health recovery and national redemption; that in many ways Covid-19 vaccination is just another step toward the many efforts in abeyance to fight this health pandemic, the road ahead is still long and painful.

For this purpose, and to highlight the significance of this observation we tasked our panellists with  the arduous imperative of  analysing the impact of mass-vaccination on society and the economy alongside the pressing issues of post-Covid-19 national health surveillance and rehabilitation programs.

Research suggests the aftermath of Covid-19 vaccination is going to be just as difficult and uncertain world as the present reality in many ways, and that caution should prevail over celebration, at least for a long time. The disease itself is projected to linger around for some time after all these mass-vaccination campaigns unless an effort is made to vaccinate everyone to the last reported case, every nation succeeds beyond herd immunity, and cure is found for Covid-19 disease. Many people are going to continue in need of medications, psychological and psychiatric services and therapy.

Is Botswana ready for this long holdout? If not, what path should we take going into the future? The Second concern is , are we going to have a single, trusted national agency charged with the  mandate to set standards for our national health data system, now that we know how real bad pandemics can be, and the value of data in quickly responding to them and mitigating impact? Finally, what is being done to curate a short history of this pandemic? A national museum of health and medicine or a Public Health Institute  in Botswana is overdue.

If we are to create strong sets of data policies and data quality standards for fighting future health pandemics it is critical that they find ideological and moral foundations in the artistic imagery and photography of the present human experience…context is essential to fighting such diseases, and to be prepared we must learn from every tragic health incident.

Our panellists answered most of these questions with distinguished intellectual clarity. We wish Batswana to join us in our second Mass-vaccination workshop.

*Oscar Motsumi: Email:oscar.motsumi@gmail.com

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The women you see in the news matter. Here’s why

9th March 2021
Jane Godia

Jane Godia

Today is International Women’s Day – it’s a moment to think about how much better our news diet could be if inequities were eliminated. In 1995, when the curtains fell in one of the largest meetings that have ever brought women together to discuss women in development, it was noted that women and media remain key to development.

Twenty-six years later, the relevant “Article J” of the Beijing Platform for Action, remains unfulfilled. Its two strategic objectives with regard to Women and Media have not been met. They are
Increase the participation and access of women to expression and decision-making in and through the media and new technologies of communication

Promote a balanced and non-stereotyped portrayal of women in the media.

Today, as we mark International Women’s Day, it’s an indictment on both media owners and civil society that women remain on the periphery of news-making. They cannot claim equal space in either the structures of newsrooms or in the content produced, be that as sources of news or as the subjects of reports. Indeed, the latest figures from WAN-IFRA’s Women in News Programme show just one in five voices in news belong to women*, be they as sources, as the author or as the main character of the news report.

Some progress was evident several years back, with stand-out women being named as chief executive officers, editors in chief, managing editors and executive editors. But these gains appear short lived in most media organisations. Excitement has turned to frustration as one-step forward has been replaced with three steps backwards. In Africa, the problem is acute. The decision-making tables of media organisations remain deprived of women and where there are women, they are surrounded by men.

Few women have followed in the footsteps of Esther Kamweru, the first woman managing editor in Kenya, and indeed sub-Saharan Africa. Today’s standout women editors include Pamela Makotsi-Sittoni (Nation Media Group, Kenya), Barbara Kaija (New Vision, Uganda), Mary Mbewe (Daily Nation, Zambia), Margaret Vuchiri (The Monitor, Uganda), Joyce Shebe (Clouds, Tanzania), Tryphinah Dongwana (Weekend Post, Botswana), Joyce Mhaville (Independent Television -ITV, Tanzania) and Tuma Abdallah (Standard Newspapers,Tanzania). But they remain an exception.

The lack of balance between women and men at the table of decision making has a rollback effect on the content that is produced. A table dominated by men typically makes decisions that benefit men.

So today, International Women’s Day is a grim reminder that things are not rosy in the news business. Achieving gender balance in news and in the structure of media organisations remains a challenge. Unmet, it sees more than half of the population in our countries suffer the consequences of bias, discrimination and sexism.

The business of ignoring the other half of the population can no longer be treated as normal. It’s time that media leaders grasp the challenge, not only because it is the right thing to do, but because it also makes a whole lot of business sense: start covering women, give them space and a voice in news-making and propel them to all levels of decision making within your organisation.

We can no longer afford to imagine that it’s only men who make and sell the news and bring in the shillings to fund the media business. Women too are worthy newsmakers. In all of our societies, there are women holding decision making positions and who are now experts in once male-only domains such as engineers, doctors, scientists and researchers.

They can be deliberately picked out to share their perspectives and expertise and bring balance to the profile of experts quoted on our news pages. Media is the prism through which society sees itself and women are an untapped audience. So, as we celebrate International Women’s Day, let us embrace diversity, which yields better news content and business products, and in so doing eliminate sexism. We know that actions and attitudes that discriminate against people based on their gender is bad for business.

As media, the challenge is ours. We need to consciously embrace and reach the commitments made 26 years ago when the Beijing Platform for Action was signed globally. As the news consuming public, you have a role to play too. Hold your news organization to account and make sure they deliver balanced news that reflects the voices of all of society.

Jane Godia is a gender development and media expert who serves as the Africa Director of Women in News programme.  
WOMEN IN NEWS is WAN-IFRA’s ground-breaking programme to increase women’s leadership and voices in the news. It does so by equipping women journalists and editors with the skills, strategies, and support networks to take on greater leadership positions within their media. www.womeninnews.org

Jane Godia, Director, Africa, Women in News

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Why is the media so afraid to talk about sexual harassment?

9th March 2021

MELANIE WALKER

The eve of International Women’s Day presents an opportunity for us to think about gender equality and the long and often frustrating march toward societies that are truly equal.

As media, we are uniquely placed to drive forward this reflection and discussion. But while focusing on the challenges of gender in society, we owe it to our staff and the communities we serve to also take a hard look at the obstacles within our own organisations.

I’m talking specifically about the scourge of sexual harassment. It’s likely to have happened in your newsroom. It has likely happened to a member of your team. It happens to all genders but is disproportionately directed at women. It happens in every industry, regardless of country, culture or context. This is because sexual harassment is driven by power, not sex. Wherever you have imbalances in power, you have individuals who are at risk of sexual harassment, and those who abuse this power.

I’ve been sexually harassed. The many journalists and editors, friends and family members who I have spoken to over the years on this subject have also been harassed. Yet it is still hard for leaders to recognize that this could be happening within their newsrooms and boardrooms. Why does it continue to be such a taboo?

Counting the cost of sexual harassment

Sexual harassment is, simply put, bad for business. It can harm your corporate reputation. It is a drain on the productivity of staff and managers. Maintaining and building trust in your brand is an absolute imperative for media organisations globally. If and when a case gets out of control or is badly handled – this can directly impact your bottom line.

It is for this reason that WAN-IFRA Women in News has put eliminating sexual harassment as a top priority in our work around gender equality in the media sector. This might seem at odds with the current climate where social interactions are fewer and remote work scenarios are in place in many newsrooms and businesses. But one only needs to tune into the news to know that the abuse of power, manifested as verbal, physical or online harassment, is alive and well.

Preliminary results from an ongoing Women in News research study into the issue of sexual harassment polling hundreds of journalists in Sub-Saharan Africa and Southeast Asia indicate that more than 1 in 3 women media professionals have been physically harassed, and just under 50% have been verbally harassed. Just over 15% of men in African newsrooms reported being physically harassed, and slightly less than 1 in 4 reports being verbally harassed. The numbers for male media professionals in Southeast Asia are slightly higher than a quarter on both forms of harassment.

The first step in confronting sexual harassment is to talk about it. We need to strip away the stigma and discomfort around having open conversations about what sexual harassment is and isn’t. Media managers, it is entirely in your power to create dynamics in your own teams that are free from sexual harassment.

Publishers and CEOs, you set the organisational culture in your media company.

By being vocal in recognising that it happens everywhere, and communicating to your employees that you will not tolerate sexual harassment of any kind, you send a powerful message to your teams, and publicly. With these actions, you will help us overcome the legacy of silence around this topic, and in doing so take an important first step to create media environments that truly embrace equality.

Melanie Walker is Executive Director of Media Development of the World Association of News Publishers (WAN-IFRA). She is a creator of Women in News, WAN-IFRA’s ground-breaking programme to increase women’s leadership and voices in the news. It does so by equipping women journalists and editors with the skills, strategies, and support networks to take on greater leadership positions within their media. www.womeninnews.org

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