BOFEPUSU appeals Industrial Court ruling
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Botswana Federation of Public Sector Unions (BOFEPUSU) has decided to appeal the Industrial Court decision that pushed the Federation out of the Public Service Bargaining Council (PSBC). The Federation has already filed the appeal paper with the Court of Appeal.
The decision by the Federation follows a ruling by the Industrial Court Judge President Justice Tebogo Maruping this week confirming the interim interdict that he issued on 22nd February 2016 to be a final court ruling.
The confirmed interim interdict which is now a final court ruling provides that, The PSBC verification report that confirmed that BOFEPUSU meets the threshold and as such should continue being admitted into the PSBC is set aside; BOFEPUSU is not entitled to be admitted into the Public Service Bargaining Council; Only trade unions recognized by the government of Botswana on its capacity as the employer, are entitled to be admitted into the Public Service Bargaining Council; and that – For the purposes of verification of whether or not a trade union party should continue to be admitted, the PSBC should take into consideration the individual membership figures of each union rather than as a collective.
BOFEPUSU Secretary General, Tobokani Rari said BOFEPUSU and the four affiliate unions carefully considered the judgement with a view of mapping a way forward. “In doing so particular attention was given to the fact that they are two available options, of either resorting to the mediation process as suggested by the court at paragraph 55 (8) or exercising our right to appeal,” he wrote in a statement.
Rari said a decision was arrived as there are some fundamental points of law and facts that the court overlooked and as such BOFEPUSU and the four affiliates would appeal the judgement. “Our view is that such misdirections are so grave that they cannot be left to pass without being challenged at the court of appeal.”
The BOFEPUSU Secretary General said the appeal papers have already been signed to be filed before the Court of Appeal. “We therefore appeal to affiliate unions, their general membership and public service in general to exercise patience and restraint as the case would be proceeding to the Court of Appeal,” said Rari.
HOW THE INDUSTRIAL COURT REASONED
The industrial Court ruling on Wednesday yanked BOFEPUSU out of the Public Sector Bargaining Council (PSBC) in a case where the Botswana Public Employees Union (BOPEU) had sought the court to bar BOFEPUSU as a federation from PSBC.
Judge President of the Industrial Court, Tebogo Maruping ruled that only trade unions which are recognised by the government in its capacity as the employer are entitled to be admitted into the membership of the PSBC.
He also continued that, for purposes of verification of whether or not the trade union party to the PSBC should continue to be admitted, PSBC shall take into consideration the individual membership figures of trade unions that make up BOFEPUSU but not as a collective.
Judge President Maruping also said that, “the dispute has given the court a lot of anxiety, the primary reason being that there is a great deal at stake for both parties.”
He added that, “in the eyes of the court there is even a greater deal at stake for the many public officers who are looking forward to being represented in the salary and conditions of service for 2016/2017 and the court appreciates the fact that time is obviously of essence.”
Judge President Maruping also directed the disputing unions and all labour unions that represent public officers to meet with Directorate of Public Service Management (DPSM) to amend the constitution of PSBC.
He thus interdicted PSBC from proceeding with the 2016/2017 salary and conditions of service negotiations pending the outcome of the mediation of this dispute by the Commissioner of labour within 30 days.
Maruping also said that the court is aware that as the matters stand, if the PSBC were to move forward it will only have one union, National Amalgamated Local Government, Parastatal and Manual Workers Union, as the trade union party, “which is unacceptable.”
He also continued to say that the court is also aware that time has probably run against PSBC as far as negotiations of the 2016/2017 salary negotiations and conditions of service are concerned but it is a matter that the court will leave for resolution by the trade unions and their employer.
Maruping also observed that while BOFEPUSU is cited fifth in the court papers, according to the labour unions making up the federation, BOFEPUSU was an ‘Acting Jointly Arrangement’ or ‘AJA’ which was admitted as the trade union party into Bargaining Council.
He continues that, according to the unions in the federation, it was that ‘AJA’ which went by the name BOFEPUSU and not the federation cited in the court papers before observing that, “curiously if that is correct it would mean that BOFEPUSU ‘AJA’ is not cited as in court proceedings… the question that immediately comes to mind is whether this BOFEPUSU ‘AJA’ has a separate legal existence from the unions under which it exists in the same way that the federation has.”
Judge President Maruping then concludes that, “probably not because as has been emphasized during the hearing of this dispute it is just a label."
He also said that the current constitution of the PSBC which would allow a trade union with 10 000 members to represent its workers in the PSBC while one with 26000 members does not, is not a sensible approach and does not give the best effect to the apparent purpose of all the parties who have agreed to terms of PSBC constitution.
He also said that in view of the court the trade unions at first had options that would have avoided the current quagmire such as making specific provision for qualification for admission such as preferring absolute numbers such as 5,000, 10,000 or 15,000 as opposed to fractions or the one third of the membership of all recognised trade unions whose members are public officers.
Judge President Maruping also said that as figures stand at the moment it is only the Manual Workers Union which qualifies for admission into PSBC at 30,812 members against a threshold of 28,780. He also continued to say that the court is not convinced that BOPEU does not have direct interest in the case as it is the next largest union and has shown interest in continuing to be a member of the PSBC. He however noted that its application for an ‘acting jointly arrangement’ with unions which does not qualify numerically seems to cast doubt on its own position on the matter.
He also said that the court has come to the conclusion that this is a dispute which requires the parties to look at the bigger picture and to decide what is best for themselves and their members saying that the parties may wish to benchmark on what is considered to be best international practice in such situations.
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The curtain came down at the PAP session with pomp and FUNFAIR
It was pomp and funfair at the Pan-African Parliament (PAP) on March 18 as the African Cultural Music and Dance Association (ACUMDA) brought the curtains down on the PAP session with a musical performance.
The occasion was the celebration of the Pan-African Parliament Day (PAP Day) which commemorated the inauguration of the first Parliament of the PAP on 18 March 2004 at the African Union Headquarters in Addis Ababa, Ethiopia.
The celebrations took place at the seat of the Parliament in Midrand to “reflect on the journey” as the institution turns 19. The event sought to retrace the origin and context of the establishment of the PAP.
The celebrations included musical performances by ACUMDA and a presentation by Prof. Motshekga Mathole of the Kara Heritage Institute on “Whither Pan-Africanism, African Culture, and Heritage.”
The PAP Day was officially launched in 2021 to educate citizens about the Continental Parliament and ignite conversations about its future in line with its mandate.
The establishment of the PAP among the AU organs signalled a historical milestone and the most important development in the strengthening of the AU institutional architecture. It laid solid groundwork for democratic governance and oversight within the African Union system and provided a formal “platform for the peoples of Africa to get involved in discussions and decision-making on issues affecting the continent.”
The genesis of the PAP can be legally traced back to 1991 with the adoption of the Treaty Establishing the African Economic Community, adopted on June 3, 1991, in Abuja (also known as the Abuja Treaty). This treaty defined the pillars and grounds for realizing economic development and integration in Africa and called for the creation of a continental parliament, among a set of other organs, as tools for the realization of African integration and economic development. This call was reemphasized in the Sirte Declaration of 1999, which called for the accelerated implementation of the provisions of the Abuja Treaty.
PAP celebrated its ten years of existence in March 2014, a year which coincided with the adoption, on June 27, 2014, in Malabo, Equatorial Guinea, of the Protocol to the Constitutive Act of the African Union relating to the Pan-African Parliament (PAP Malabo Protocol), which, once in force, will transform the PAP into a legislative body of the AU. It requires a minimum of 28 countries to ratify it before it comes into force.
Therefore, the commemoration of PAP Day serves as a reminder to the decision-makers around the continent to fulfil their commitment to the PAP by ratifying its Protocol, 19 years after sanctioning its establishment. 14 AU member states have so far ratified the Malabo Protocol.
The celebrations of PAP Day coincided with the closing ceremony of the sitting of the PAP Permanent Committees and other organs. The Sitting took place in Midrand, South Africa under the AU theme for 2023, “Accelerating the implementation of African Continental Free Trade Area (AfCFTA)” from 6 to 17 March 2023.
PAP President, H.E. Chief Fortune Charumbira, expressed appreciation to members for their commitment during the two-week engagement.
“We have come to the end of our program, and it is appropriate that we end on a high note with the PAP Day celebrations.
“We will, upon your return to your respective countries, ensure that the work achieved over the past two weeks is transmitted to the national level for the benefit of our citizens,” concluded H.E. Chief Charumbira.
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PAP needs to priorities land issues-Prof Mathole
Prof Motshekga Mathole of the Kara Heritage Institute has advised the Pan-African Parliament (PAP) to prioritise the land issue in the continent if they are to remain relevant.
He said this while addressing the Plenary during the commemoration of PAP Day held at the PAP Chambers in Midrand, South Africa
The PAP Day was officially launched in 2021 to commemorate the inauguration of the first Parliament on 18 March 2004 in Addis Ababa, Ethiopia. Intended as a platform for people of all African states to be involved in discussions and decision-making on problems and challenges facing the continent.
In a speech titled “Whither Pan-Africanism, African Culture, and Heritage,” Prof Mathole stated that for PAP to remain relevant, it must address the continent’s key land dilemma, which he feels is the core cause of all problems plaguing the continent
“If this Parliament is to be taken seriously, ownership of land and natural resources must be prioritized at the national and continental levels. Africans are not poor; they are impoverished by imperialist nations that continue to hold African land and natural resources,” said Prof Mathole.
“When African leaders took power from colonialists, they had to cope with poverty, unemployment, and other issues, but they ignored land issues. That is why Africa as a whole is poor today. Because our land and minerals are still in the hands of colonizers, Africa must rely on Ukraine for food and Europe for medical.”
Prof Mathole believes that the organization of the masses is critical as cultural revolution is the only solution to Africa’s most problems.
“We need a cultural revolution for Africa, and that revolution can only occur if the masses and people are organized. First, we need a council of African monarchs since they are the keepers of African arts, culture, and heritage. We need an African traditional health practitioners council because there is no ailment on the planet that cannot be healed by Africans; the only problem is that Africans do not harvest and process their own herbs,” he said.
Meanwhile, PAP President, H.E. Hon Chief Fortune Charumbira expressed satisfaction with the commitment displayed throughout the two-week period and said the PAP Day celebrations were befitting curtains down to the august event.
“On this high note of our two-week engagement, it is appropriate that we close our program on a high note with PAP celebrations, and I would like to thank everyone for your commitment, and please continue to be committed,” said H.E Hon Chief Charumbira.
PAP’s purpose as set out in Article 17 of the African Union Constitutive Act, is “to ensure the full participation of African people in the development and economic integration of the continent”. As it stands, the mandate of the Parliament extends to consultation and playing an advisory and oversight role for all AU organs pending the ratification protocol.
Also known as the Malabo Protocol, the Protocol to the consultative act of the AU relating to the PAP was adopted at the Assembly of Heads of State and Government summit in June 2014 and is intended to extend the powers of the PAP into a fully-fledged legislative organ. It requires a minimum of 28 countries to ratify it before it comes into force.
The commemoration of the PAP Day, therefore, serves as a reminder to the decision-makers around the continent to fulfil their commitment to the PAP by ratifying its Protocol, 17 years after sanctioning its establishment. 14 AU member states have so far ratified the Malabo Protocol.
The PAP Day commemoration also aims to educate citizens about the PAP and ignite conversations about the future of the continental Parliament in line with its mandate.
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DPP drops Kably threat to kill case
The Botswana Democratic Party (BDP) Chief Whip and Member of Parliament for Letlhakeng/Lephephe Liakat Kably has welcomed the Directorate of Public Prosecution (DPP)’s decision not to prosecute BDP councillor, Meshack Tshenyego who allegedly threatened to kill him. However, the legislator has warned that should anything happen to his life, the state and the courts will have to account.
In an interview with this publication, Kablay said he has heard that the DPP has declined to prosecute Tshenyego in a case in which he threatened to kill him adding that the reasons he received are that there was not enough evidence to prosecute. “I am fine and at peace with the decision not to prosecute over evidential deficits but I must warn that should anything happen to my life both the DPP and the Magistrate will have to account,” Kablay said.
Connectedly, Kably said he has made peace with Tshenyego, “we have made peace and he even called me where upon we agreed to work for the party and bury the hatchet”.
The DPP reportedly entered into a Nolle Prosequi in the matter, meaning that no action would be taken against the former Letlhakeng Sub-district council chairperson and currently councillor for Matshwabisi.
According to the charge sheet before the Court, councilor Tshenyego on July 8th, 2022 allegedly threatened MP Kably by indirectly uttering the following words to nominatedcouncilor Anderson Molebogi Mathibe, “Mosadi wa ga Liakat le ban aba gagwe ba tsile go lela, Mosadi wame le banake le bone ba tsile go lela. E tla re re mo meeting, ka re tsena meeting mmogo, ke tla mo tlolela a bo ke mmolaya.”
Loosely translated this means, Liakat’s wife and children are going to shed tears and my wife and kids will shed tears too. I will jump on him and kill him during a meeting.
Mathibe is said to have recorded the meeting and forwarded it to Kably who reported the matter to the police.
In a notice to the Magistrate Court to have the case against Tshenyego, acting director of Public Prosecutions, Wesson Manchwe cited the nolle prosequi by the director of public prosecution in terms of section 51 A (30) of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana as reasons for dropping the charges.
A nolle prosequi is a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action.
“In pursuance of my powers under section 51 A (300 of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana, I do hereby stop and discontinue criminal proceedings against the accused Meshack Tshenyego in the Kweneng Administrative District, CR.No.1077/07/2022 being the case of the State vs Tshenyego,” said Manchwe. The acting director had drafted the notice dropping the charges on 13th day of March 2023.
The case then resumed before the Molepolole Magistrate Solomon Setshedi on the 14th of March 2023. The Magistrate issued an order directing “that matters be withdrawn with prejudice to the State, accused is acquitted and discharged.”