The courts continues to paint the state President, Lt Gen Ian Khama Seretse Khama as a leader who habitually abuses his presidential powers by way of making decision that violates the laid down rules.
Just a week after the court of appeal declared that the President has no power to stop foreign prisoners from accessing free anti retroviral drugs, the High court this week announced that the President had no right to increase public service salaries without the consent of the bargaining council back in 2014.
Justice Michael Leburu of the Lobatse High Court said that when Khama announced that the civil service would get a salary increment during a kgotla meeting in 2014, he was acting against the law.
“In conclusion, it is declared as follows. The conduct of the respondents, in unitarily awarding a 4% salary and allowances increase, outside the Public Service bargaining council to union members, whilst negotiations were ongoing constituted a breach of the duty to negotiate in good faith as defined in the Procedure for meetings and negotiations, of the Public Services Bargaining Council,” Leburu made the ruling.
This is despite the fact that the Public Service Act grants the President general directions to any subject under this act.
Section 12 of the Act reads that, “the exercise of any powers or the performance of any duties under this Act shall be subject to such general directions of the President as the President may consider.”
Nonetheless, Leburu indicated that this point was not pleaded or that it was not argued that the President invoked his power under this section when he unilaterally announced the salary increment.
In March, 2014, President Khama announced at a kgotla meeting that there would be a 4% salary increase for public servants with effect from April 2014. He however indicated that despite the increase, the salary negotiations would continue at the bargaining council.
At the time of the announcement, salary negotiations had begun at the bargaining council. Khama’s contention then was that it was not fair for non-unionised public service and members of the disciplined forces to await the conclusion of the salary negotiations.
The Public service unions under the Botswana Federation of Public Sector Unions (BOFEPUSU) accused him and his government especially the Directorate of Public Service Management (DPSM) of betrayal and failing to negotiate in good faith. DPSM became the co-accused because it then issued a directive announcing the increment in respect of certain public officers.
Also increased were a number of allowances. The following Month, April, DPSM issued a directive which amended the terms of conditions of employment such as the salary advance scheme, Self Help Housing Agency (SHHA) Scheme and others while negotiations on those terms had not been concluded by the bargaining council.
“The starting point is that the parties agreed, amongst others and in no uncertain terms that bypassing the negotiation process and also engaging in unilateral action, such as the unilateral alteration of the terms and conditions before negotiations have been concluded, was a breach of a duty to bargain in good faith,” Leburu pointed out before concluding that the DPSM had also breached the duty to negotiate in good faith when it amended the said conditions of service outside the bargaining council.
The judge says, the duty to bargain in good faith exists in order to promote and facilitate a meaningful collective bargaining and it is central to sound industrial relations. Any conduct that unduly weakens the bargaining process amounts to breach of the duty.
“In my judgement, a unilateral salary increase to union members whilst negotiations are ongoing is a classic form of bypassing the negotiation process. It is a form of bypass in that the terms and conditions of service squarely fall within the remit and purview of the Bargaining Council, as established by the Public Service Act,” Leburu pointed out.
The Bargaining Council was introduced in 2010 by the Public Service Act. The main purpose of the Council is to negotiate terms and conditions of employment in the public service and Leburu says when the legislature enacted the law, it did so for the peace, order and good government of the country.
“The legislature in its usual wisdom, conferred power on the Public Service Bargaining Council for purposes of collective bargaining. The exercise of such a power by the council, promotes the objectives of the Act, namely, recognition of trade unions and collective bargaining. Where power is granted to a specific authority, that authority itself should as a matter of general proposition, exercise the power so granted,” Leburu further stated.
Furthermore, the constitution according to Leburu makes it abundantly crisp that despite the powers granted to the President, Parliament also has the power to confer functions on other persons or authorities other than the President. In the present case the powers were given to the Bargaining Council to negotiate and agree on the terms and conditions of service.
“To that extent, the 1st respondent (President) cannot through the exercise of his executive powers override the obligations that the government has undertaken in terms of the Public service Act. Put differently the 1st respondent cannot disregard, through the exercise of his executive powers, contractual obligations that the government has undertaken and firmly bound itself unto,” Leburu noted.
Another case which is testing the Presidential powers is yet to be heard before court in a matter in which the Law society of Botswana (LSB) wants the court to declare whether or not President Khama was acting lawfully when he refused to appoint a local attorney as the Judge of the High court, following recommendation by the Judicial Service Commission.
The P250 million National Petroleum Fund (NPF) saga that has been before court since 2017 seems to be losing its momentum with a high possibility of it being thrown out as defence lawyers unmask incompetency on the part of the Directorate of Public Prosecution (DPP).
The Gaborone High Court this week ruled that the decision by the State to prosecute Justice Zein Kebonang and his twin brother, Sadique Kebonang has been reviewed and set aside. The two brothers have now been cleared of the charges that where laid against them three years ago.
The United States (US) will on the 3rd of November 2020 chose between incumbent Donald Trump of the Republicans and former Vice President Joe Biden of the Democrats amid the coronavirus pandemics, which has affected how voting is conducted in the world’s biggest economy.
Trump (74) seeks re-election after trouncing Hillary Clinton in 2016, while Biden (77) is going for his first shot as Democratic nominee after previous unsuccessful spells.
US Presidents mostly succeed in their re-election bid, but there have been nine individuals who failed to garner a second term mandate, the latest being George W H. Bush, a Republican who served as the 41st US President between 1989 and 1993.
Dr Mark Rozell, a Dean of the School of Policy and Government at George Mason University in Arlington, Virginia describes the complex US electoral system that will deliver the winner at the 3rd November elections.
“The founders of our Republic de-centralised authority significantly in creating our constitutional system, which means that they gave an enormous amount of independent power and authority to State and local governments,” Dr Rozell told international media on Elections 2020 Virtual Reporting Tour.
Unlike parliamentary democracies, like Botswana the United States does not have all of the national government elected in one year. They do not have what is commonly called mandate elections where the entire federal government is elected all in one election cycle giving a “mandate” to a particular political party to lead, and instead US have what are called staggered elections, elections over time.
The two house Congress, members of the House of Representatives have two-year long terms of office. Every two years the entire House of Representatives is up for re-election, but senators serve for six years and one third of the Senate is elected every two years.
For this election cycle, US citizens will be electing the President and Vice
President, the entire House of Representatives and one third of the open or contested seats in the Senate, whereas two thirds are still fulfilling the remainder of their terms beyond this year.
An important facet of US electoral system to understand given the federalism nature of the republic, the US elect presidents State by State, therefore they do not have a national popular vote for the presidency.
“We have a national popular vote total that says that Hillary Clinton got three million more votes than Donald Trump or in Year 2000 that Al Gore got a half million more votes than George W. Bush, but we have what is called a State by State winner takes all system where each State is assigned a number of electors to our Electoral College and the candidate who wins the popular vote within each State takes 100 percent of the electors to the Electoral College,” explained Dr Rozell.
“And that is why mathematically, it is possible for someone to win the popular vote but lose the presidency.”
Dr Rozell indicated that in 2016, Hillary Clinton won very large popular majorities in some big population States like California, but the system allows a candidate to only have to win a State by one vote to win a 100 percent of its electors, the margin does not matter.
“Donald Trump won many more States by smaller margins, hence he got an Electoral College majority.”
Another interesting features by the way of US constitutional system, according to Dr Rozell, but extremely rare, is what is called the faithless elector.
“That’s the elector to the Electoral College who says, ‘I’m not going to vote the popular vote in my State, I think my State made a bad decision and I’m going to break with the popular vote,’’ Dr Rozell said.
“That’s constitutionally a very complicated matter in our federalism system because although the federal constitution says electors may exercise discretion, most States have passed State laws making it illegal for any elector to the Electoral College to break faith with the popular vote of that State, it is a criminal act that can be penalized if one is to do that. And we just had an important Supreme Court case that upheld the right of the states to impose and to enforce this restriction”
There are 538 electors at the Electoral College, 270 is the magic number, the candidate who gets 270 or more becomes President of the United States.
If however there are more candidates, and this happens extremely rarely, and a third candidate got some electors to the Electoral College denying the two major party candidates, either one getting a majority, nobody gets 270 or more, then the election goes to the House of Representatives and the House of Representatives votes among the top three vote getters as to who should be the next President.
“You’d have to go back to the early 19th century to have such a scenario, and that’s not going to happen this year unless there is a statistical oddity, which would be a perfect statistical tie of 269 to 269 which could happen but you can just imagine how incredibly unlikely that is,” stated Dr Rozell.
BLUE STATES vs RED STATES
Since the 2000 United States presidential election, red states and blue states have referred to states of the United States whose voters predominantly choose either the Republican Party (red) or Democratic Party (blue) presidential candidates.
Many states have populations that are so heavily concentrated in the Democratic party or the Republican party that there is really no competition in those states.
California is a heavily Democratic State, so is New York and Maryland. It is given that Joe Biden will win those states. Meanwhile Texas, Florida and Alabama are republicans. So, the candidates will spent no time campaigning in those states because it is already a given.
However there are swing states, where there is a competition between about five and 10 states total in each election cycle that make a difference, and that is where the candidates end up spending almost all of their time.
“So it ends up making a national contest for the presidency actually look like several state-wide contests with candidates spending a lot of time talking about State and local issues in those parts of the country,” said Dr Rozell.
High Commissioner of the Federal Government of Nigeria to Botswana, His Excellency Umar Zainab Salisu, has challenged President Dr Mokgweetsi Masisi to move swiftly and lobby Africa’s richest man, Nigerian Billionaire, Aliko Dangote to invest in Botswana.
Speaking during a meeting with President Masisi at Office of President on Thursday Zainab Salisu said Dangote has expressed massive interest in setting up billion dollar industries in Botswana. “We have a lot of investors who wish to come and invest in Botswana , when we look at Botswana we don’t see Botswana itself , but we are lured by its geographic location , being in the centre of Southern Africa presents a good opportunity for strategic penetration into other markets of the region,” said Salisu.