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BOFEPUSU sorting its bargaining problem in court

Dispute of interest Botswana Public Employees Union’s (BOPEU) secession from the Botswana Federation of Public Sector Unions (BOFEPUSU) has rocked the start of Public Service Bargaining Council’s (PSBC) 2016/2017 wage talks.

BOFEPUSU, on Monday this week hauled the Directorate of Public Service Management (DPSM) before the Industrial court on an urgent application seeking relief, following the collapse of bargaining council’s 17 December 2015 talks and its subsequent indefinite adjournment.

BOFEPUSU states in court papers that after it submitted its proposal for wage increment, a meeting was called on the 17th of December where procedures applicable to the wage negotiations were to be discussed. At the meeting DPSM proxies contended whether the Public Service Bargaining Council was properly constituted in light of BOPEU’s withdrawal from the trade union federation.

The DPSM proxies further stated and put forward a precondition that they can only discuss procedures applicable to the 2016/2017 wage negotiations so long as the issues of whether or not the Council was properly constituted had been exhaustively discussed and a way forward on the issue agreed on. On the parallel vein BOFEPUSU could not concede ground outlining details that the BOPEU factor could not be advanced as a precondition for the start of wage talks because it was never in the meeting’s agenda.

BOFEPUSU chief executive and union old hand, Johnson Motshwarakgole argues in court papers that BOPEU’s decision to terminate its affiliation to BOFEPUSU did not take away BOFEPUSU’s right to bargain with DPSM because the ‘acting jointly arrangement’ which BOFEPUSU invoked to get admission into the bargaining council with BOPEU has not been terminated.

He continues that even if BOPEU had pulled out of the ‘acting jointly arrangement’, BOFEPUSU will still have a right to continue bargaining on behalf of their members because they still represent at least two-thirds of the total workforce well in excess of the constitutionally required one-third.

Motshwarakgole continues that “termination of membership to a Council follows a process and it is not automatic and must follow the process laid down in order for it to be effective. Until such time as that process has been followed the Council remains properly constituted.”

He further observed that the imposition of an unreasonable precondition constitutes a form of bad faith bargaining and reiterated that BOFEPUSU has a right to bargain in good faith with DPSM; a right enshrined in the Public Service Act No.30 of 2008, Trade Unions and Employers’ Organisation Act, the constitution of the Bargaining Council as well as the Procedures for Meetings and Negotiations of 2015.

Motshwarakgole further warned in court documents that, “the right to engage with DPSM in good faith wage talks will be rendered hollow if its conduct is to continue unabated and that DPSM’s unfair precondition effectively amounts to a refusal to negotiate as well as adding that the prejudice BOFEPUSU stands to endure as a result of DPSM’s unlawful conduct will be so immense that it cannot be quantified.”

In a strongly worded responding affidavit, the  DPSM Director, Ruth Maphorisa, argues that it only was reasonable that DPSM requested the inclusion of the agenda tagged ‘Parties to the Council’, relating to BOPEU’s withdrawal from the trade union federation because her department had received 2 letters from BOPEU indicating its disaffiliation from BOFEPUSU with immediate effect. Maphorisa also accused BOFEPUSU of, “ventilating the ‘Parties to the Council’ agenda through a court application whilst excluding BOPEU.” She continued that, “It is curious to note that the issue of ‘Parties to the Council’ revolves around the actions of BOPEU and yet it is not party to the proceedings either as an applicant or as a respondent.”

However DPSM’s counsel Tefo Bogosi reasoned that BOFEPUSU had waived its right to negotiate and it ceased to exist on the 31st of October 2015 as per the collectively taken PSBC (Bargaining Council) resolution number 3 of April 2015 by submitting wage proposal to the PSBC on the 23rd of November; nearly a month after the agreed period which states that wage negotiations should be executed year after year in the months of October and September so as to align them to the national budget process.

Bogosi also continued to argue that BOFEPUSU’s court argument is a dispute of interest and not a dispute of right-a prospect that could force it to take the path of industrial action to extract concession.

However presiding Justice Diratsagae Molomo advised Bogosi to deal with facts and not technicalities of law. Justice Molomo also advised the sparring PSBC partners in the day-long trial to be pragmatic and keep in thought the enormity of the case with possibly 90 000 thousand civil servants caught in the crosshairs.

Molomo remarked that, “We should avert cases like that happened in 2011 and we (the courts) should not be seen as a place where things like what happened are made easy to reoccur.” Diratsagae advised.

The parties opted for a settlement agreement that will see a verification exercise of the federation’s collective membership being carried out on the 11th January to establish whether BOFEPUSU meets the one-third threshold to negotiate on behalf of the union membership.

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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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