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Perhaps Masisi is a fruitful tree!

Ndulamo Anthony Morima
EAGLE WATCH

The unexpected rise of His Honour Mokgweetsi Masisi to the vice presidency has elicited debate on his suitability to hold such a high office, especially because in terms of our Constitution when the Office of President falls vacant Masisi shall automatically become President. Some, as will be shown below, have argued that Masisi is not suited for the presidency while others contend that President Lieutenant General Seretse Khama Ian Khama cannot have made a better choice.

Since Masisi’s appointment, stones have been thrown at him. The question that arises is: does Masisi really deserve to have stones thrown at him? There is an adage that says “a fruitless tree cannot have stones thrown at it.”  This is true because people can only throw stones at a fruitful tree in order to have the fruits fall from it for their consumption. Therefore, perhaps the reason Masisi has had so many stones thrown at him is that he is a fruitful tree. That is, he is a strategic target. Or is he?

Masisi’s most ferocious stone attacks have come from trade unions, especially Botswana Federation of Public Service Unions (BOFEPUSU). Masisi lost favour with BOFEPUSU when he was at the Ministry of Presidential Affairs & Public Administration (MOPAPA), especially during the 2011 public sector strike because BOFEPUSU believed that he was responsible for government’s failure to compromise during the salary negotiations. The relationship became worse when hundreds of essential service public employees, especially nurses, lost their jobs for participating in the strike in contravention of the law.

The question is: in leading government’s defence against the trade union onslaught, did Masisi act as a government minister bound by collective responsibility should or he went overboard in pursuit of his own interests and beliefs? Put differently, did he act outside government’s mandate? Considering the fact that he was never demoted thereafter and has in fact been rewarded with the vice presidency one can conclude that he acted within government’s mandate.

If Masisi acted within government’s mandate is it not what is required of a government minister? Would you not say he is fruitful at least from the government’s point of view? An objective person would in all probability regard such a person as fruitful.

In the same vain a trade unionist who defends the workers’ cause at all costs should be regarded as fruitful at least from the trade union or workers’ perspective. If a trade unionist, for example, does not stand by the workers’ mandate he or she is regarded as a sell-out. Similarly, if Masisi had failed to defend government’s position he would have been a sell-out.

But, should Masisi have remained loyal to the government even when the workers’ welfare and by extension Batswana’s livelihood were in jeopardy? Before we answer this question we should ask the same question with respect to a trade unionist.

Should a trade unionist remain loyal to the workers’ cause even when the peoples’ welfare is in jeopardy? In my view, both Masisi and the trade unionist should, in such a case, sway their loyalty for what Jeremy Bentham calls the ‘greatest good for the greatest number’.

But, what, during the 2011 public sector strike, was the ‘greatest good for the greatest number’? While Masisi would say it was declining the trade unions’ high salary increment demand in order to save the economy from failing to emerge from the recession, trade unions would say it was increasing the salaries for public servants as demanded since that would stimulate economic growth.

But, was the trade unions’ demand for a 16% salary increase really affordable at the time? If the trade unions genuinely believed it were affordable then (only two years after the world economic recession) why have they never relentlessly pursued such a percentage even this year when the country has long emerged from the recession?

But, was he as fruitful when he played a leading role, in cohorts with the former Minister of Labour & Home Affairs, Peter Siele, in government’s decision to declare certain professions, including Teaching, as essential services and, therefore, ineligible to strike, a move which was obviously made to reduce public servants’ power during strike action? He was not and our courts have confirmed that by declaring such a move unconstitutional. Perhaps he was defending a principle. But, which principle?

When under his watch the Directorate on Public Service Management (DPSM) attempted to terminate the secondment of trade union Secretary Generals for alleged political involvement was he being fruitful? Was it fruitfulness for him to allow DPSM to attempt to terminate such trade union benefits as offices, transport and salary deductions for loans? Substantively he may have been, but procedurally he was not because the action was tainted by lack of consultation.

This man, Masisi, who can, despite the risk of losing public support, stand for principle and defend the ‘greatest good for the greatest number’ is he not the fruitful tree that would inevitably have stones thrown at it? If he were indeed a fruitless tree would his constituents, including public service employees, returned him to Parliament despite having been in mighty BOFEPUSU’s 2014 general elections’ hit list? He probably would not. Perhaps his constituents saw the fruits that President Khama saw in Masisi.

Masisi has also been labelled a fruitless tree because of his intolerance of the private media. During the run-up to the 2014 general elections a recording was circulated in social media in which he expressed delight that the Botswana Democratic Party (BDP) misled Gabz FM into believing that its parliamentary candidates will participate in Gabz FM’s Parliamentary Debates when it knew all along that they would not. Recently, Masisi was accused of being the architect of government’s decision not to place advertisements on certain anti-BDP private media outlets.

Before we judge Masisi for this seeming fruitlessness we need to ask some questions. With respect to the Gabz FM issue, can any politician whose political survival is at stake want to participate in an activity that he or she believes would be prejudicial to his or her survival? Has some Opposition candidates not declined participating in Radio Botswana candidates debates because they believed that it would be prejudicial to them because of its bias to the ruling BDP?

The truth is that the BDP knew that Gabz FM’s interviews would, because of their in depth and insightful nature, likely expose inadequacies in some of their candidates. It also knew that the BOFEPUSU factor and the death of the late Gomolemo Motswaledi of the Umbrella for Democratic Change (UDC) would not put it in good stead during such debates.

Do you still think Masisi acted imprudently, at least as a politician, in influencing the BDP to take such a position if he did? Though such action undermined media freedom, there may be credence to the view that to the extent he acted in the best interests of the party which was facing possible defeat at the elections he acted fruitfully.

But, can the same be said about the advertisement ban issue? It cannot because this involves tax payers’ money. If the advertising ban were in relation to a BDP owned media outlet it would be different. A question still begs to be asked though. In this dirty game that politics is can any governing political party allow the government to place advertisements in media outlets that it believes are opposed to it?

What about the allegations that BOFEPUSU has waged a campaign to undermine Masisi’s race for the BDP’s chairmanship because he is the architect of government’s takeover of the public servants’ motor vehicle loan scheme (GEMVAS) from UNIGEM (PTY) LTD, a company co-owned by some BOFEPUSU affiliates? If Masisi is indeed the architect of such an undertaking is he a fruitful tree? The answer to this question depends on the reasons for the takeover.

If the take- over is motivated by such irrelevant considerations as the desire to weaken trade unions in their normal mandate of fighting for workers’ rights then Masisi is indeed a fruitless tree. But if it is motivated by the fact that it is financially prudent for the scheme to be administered by government Masisi is a fruitful tree. If the takeover is motivated by his suspicion that trade unions use UNIGEM (PTY) LTD’s proceeds to finance partisan politics then Masisi is a fruitful tree because no political party, including from the Opposition or government can want to indirectly finance its adversary.        

Over and above the aforegoing, it is perhaps his vigor, which he exhibited in selling President Khama’s poverty eradication projects while at MOPAPA, coupled with eloquence of speech, which endeared him to President Khama and made him the fruitful tree that he probably is, at least for President Khama, the BDP and his constituents. If only he improved his trade union and media tolerance and tempered President Khama’s iniquities and indiscretions with virtue he would inarguably be a fruitful tree for all Batswana.

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Victory is Won

22nd September 2020

Israelites take Canaan under General Joshua

Even as the Nation of Israeli braced to militarily take possession of the Promised Land, General, its top three senior citizens, namely Moses, Aaron, and Miriam, were not destined to share in this god-conferred bequest. All three died before the lottery was won.

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Finance Bills: What are they about?

22nd September 2020

Financial Reporting (Amendment) Bill, 2020 and Accountants (Amendment) Bill, 2020 were expeditiously passed by parliament on Thursday.

What are these two Bills really about?  The Bills are essentially about professional values that are applicable to auditors and accountants in their practice. The Bills seeks to basically enhance existing laws to ensure more uprightness, fairness, professional proficiency, due care, expertise and or professional technical standards.

The Financial Reporting Act, 2010 (FRA) establishes the Botswana Accountancy Oversight Authority (BAOA), as the country’s independent regulator of the accounting and auditing profession. BAOA is responsible for the oversight and registration of audit firms and certified auditors of public interest entities.

In the same vein, there is the Accountants Act, 2010 establishing the Botswana Institute of Chartered Accountants (BICA) which is responsible for the registration and regulation of the accounting and auditing profession. This consequently infers that some auditors have to register first with BICA as certified auditors, and also with BAOA as certified auditors of public bodies. So, the Bills sought to avert the duplication.

According to Minister Matsheka, the duplication of efforts in the regulation of auditors, which is done by both BICA and BAOA, creates a substantial gap on oversight of certified auditors in Botswana, as the two entities have different review procedures. He contends that the enforcement of sanctions becomes problematic and, thus, leads to offenders going Scot-Free, and audit quality standards also continue to plunge.

The Financial Reporting (Amendment) Bill, 2020, in the view of the Minister, brings the oversight and regulation of all auditors in Botswana under the jurisdiction of the Accountancy Oversight Authority and that Bringing all auditors within one roof, under the supervision of BAOA would therefore reinforce their oversight and significantly enhance accountability.

He also pointed that the Bill broadens the current mandate of the Authority by redefining public interest entities to include public bodies, defined as boards, tribunals, commissions, councils, committees, other body corporate or unincorporated established under any enactment.

This covers any company in which government has an equity shareholding. In order to enable the process of instituting fitting sanctions against violation of its provisions, the Bill clearly lays down acts and lapses that constitute professional misconduct.

This Bill further strengthens the sanctions for breach of the Act by public interest entities, officers, firms, and certified auditors. Reinforcing the law with respect to such sanctions will act as an effective deterrent for breach of the Act.

The Accountants Bill also strengthens the current mandate of the Institute by making it obligatory for those who provide accountancy services in Botswana to register with the Institute, and for all employers to hire accountants who are registered with the Institute.

The Minister reasons that in line with the spirit of citizen empowerment, this Bill proposes reservation of at least 50% of the Council membership for citizens. This, he says, is to empower citizens and ensure that citizenries play an active role in the affairs of the Institute, and ultimately in the development of the accounting profession in Botswana.

The Bills come at a point when Botswana’s financial sector is in a quagmire. The country has been blacklisted by the European Union. Its international rankings on Corruption Perception Index have slightly reduced.  According to recent reports by Afro Barometer survey, perceptions of corruption in the public service have soured and so is mistrust in public institutions.

Rating agencies, Standard Poor’s and Moody’s have downgraded Botswana, albeit slightly. The reasons are that there continues to be corruption, fiscal and revenue crimes such as money laundering and general unethical governance in the country. There are still loopholes in many laws despite the enactments and amendments of more than thirty laws in the last two years.

One of the most critical aspect of enhancing transparency and accountability and general good governance, is to have a strong auditing and accounting systems. Therefore, such professions must be properly regulated to ensure that public monies are protected against white color crime. It is well known that some audit firms are highly unprincipled.

They are responsible for tax avoidance and tax evasions of some major companies. Some are responsible for fraud that has been committed. They are more loyal to money paid by clients than to ethical professional standards. They shield clients against accountability. Some companies and parastatals have collapsed or have been ruined financially despite complementary reports by auditors.

In some cases, we have seen audit firms auditing parastatals several times to almost becoming resident auditors. This is bad practice which is undesirable. Some auditors who were appointed liquidators of big companies have committee heinous crimes of corruption, imprudent management, fraud and outright recklessness without serious consequences.

There is also a need to protect whistleblowers as they have been victimized for blowing the whistle on impropriety. In fact, in some cases, audit firms have exonerated culprits who are usually corrupt corporate executives.

The accounting and auditing professions have been dominated by foreigners for a very long time. Most major auditing firms used by state entities and big private sector companies are owned by foreigners. There has to be a deliberate plan to have Batswana in this profession.

While there are many Batswana who are accountants, less are chartered accountants. There must be deliberate steps to wrestle the profession from foreigners by making citizens to be chartered.  It is also important to strengthen the Auditor General. The office is created by the constitution.

The security of tenure is clearly secured in the constitution. However, this security of tenure was undermined by the appointing authority in many instances whereby the Auditor General was appointed on a short-term contract. The office is part of the civil service and is not independent at all.

The Auditor General is placed, in terms of scale, at Permanent Secretary level and is looked at as a peer by others who think they can’t be instructed by their equivalent to comply. Some have failed to submit books of accounts for audits, e.g. for special funds without fear or respect of the office. There is need to relook this office by making it more independent and place it higher than Permanent Secretaries.

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Labour relations in Botswana: a historical perspective

22nd September 2020

The Botswana labour movement predates independence, though, according to ‘Friedrich Ebert Stiftung Trade Union in Botswana: Country Report 2003’, there was no organized labour in the form of vibrant trade unions which could effectively articulate the workers’ interests until 1948.

Post 1948, the labour movement became very robust and active (Hunyepa, 2008). In fact, it is incontrovertible that the labour movement contributed significantly to Botswana’s attainment of independence (Kodzo and Ntumy, 2015).

Though regional in nature, the Francistown Employees Union (FEU) and Serowe Workers Union (SWU) contributed immensely to Botswana’s independence (Hunyepa, 2008).

The same applies to the Bechuanaland Protectorate Workers’ Union (BPWU), Bechuanaland Trade Union Congress (BTUC), Bechuanaland General Workers Organisation (BGWO), Botswana Civil Service Association (BCSA), Botswana Teachers Union (BTU), Bechuanaland Protectorate African Teachers’ Association (BPATA) and African Civil Service Association (ACSA).

BCSA and BTU were formed in 1937 and 1949 respectively. BCSA, now Botswana Public Employees Union (BOPEU), fought for the improvement of workers’ conditions of service from time immemorial (Hunyepa, 2008).

BCSA teamed up with the African Advisory Council (AAC) in its campaigns against the ill-treatment of Africans by the colonial government (Hunyepa, 2008). The AAC, whose leadership was dominated by Chiefs and a few educated Batswana, was the people’s torchbearer in as far as political emancipation was concerned (Hunyepa, 2008).

During the colonial era, when Botswana, then Bechuanaland Protectorate, was under British protection, which I submit was colonisation disguised as protection, labour legislation was premised on two labour statutes which applied in the Cape Colony. These statutes were the Masters and Servants Act of 1856 and the Protection of African Labourers Proclamation 14 of 1936.

The basis for applying these colonial statutes, which were applied mutatis mutandis in the Protectorate as they were in the Cape Colony ( Fombad The Botswana Legal System 57), was the British Order in Council (Bechuanaland and Protectorate General Administration Order in Council of 1891; Fombad The Botswana Legal System 51), decreed by Her Majesty the Queen in pursuance of the powers bestowed upon her by the Foreign Jurisdictions Act.

The Masters and Servants Act applied to Bechuanaland from 1909 to 1963. The Protection of African Labourers Proclamation, which provided employees with very limited protection of their rights and employment security, also applied to Bechuanaland until 1963.

These Acts were infamous especially because the colonial government was believed to be insensitive to the plight of Africans and employees’ rights (Kalonda, 37). These labour laws were untimely repealed in 1963 when Bechuanaland promulgated her first employment statute, the Employment Law.

This was done in an effort to improve labour relations in the country as well as to secure cordial industrial relations and workplace peace. The Government of Botswana did this by enacting relatively worker-friendly labour legislation immediately after independence in 1966(Kalonda, 37).

Consequently, Botswana’s labour relations have, until 2011, been cordial, with only one major strike led by the Manual Workers Union in 1995.The result was the famous National Amalgamated Local Central Government Workers Union v Attorney General 1995 BLR 48 (CA) case.

Botswana has ratified and domesticated all the fundamental International Labour Organisation (ILO)’s Conventions. Consequently, her labour legislation developed to give effect to the ILO Conventions. First, was the Trade Union and Trade Dispute Proclamation, 1942 which, according to ‘Friedrich Ebert Stiftung Trade Union in Botswana: Country Report 2003’, legalised trade unions.

In 1969, the Trade Unions and Trade Dispute Proclamation (TUTDP) was repealed and replaced with the Trade Dispute Act No. 28 of 1969. This Act, inter alia, provided for the establishment of the Industrial Arbitration Tribunal and a Board of Inquiry (IATBI).

It also made provision for settlement of trade disputes and control and regulation of strikes and lockouts. In 1992, the Trade Disputes Amendment Act (TDAA) of 1992 was passed. It replaced the Office of the Permanent Arbitrator with the Industrial Court. It, according to Veronica Moroka & 2 Others v The Attorney General and Another, Court of Appeal Civil Appeal No. CACGB-121-17, also provided for the appointment of judges of the Industrial Court.

This amendment was followed by another in 2004 which resulted in the enactment of a comprehensive TDA which made provision for employer organisations. For many years, only industrial class workers were permitted to unionise in the Public Service.

In 2004, significant amendments were made to the Trade Union and Employers’ Organisation Act, Cap 48:01 which enabled public servants who were not industrial class workers to unionise for the first time in the country’s history.

Previously, public servants could only form staff associations as was the case with Botswana Civil Servants Association (BCSA), Botswana Federation of Secondary School Teachers (BOFESETE), Botswana Unified Local Government Service Association (BULGASA), Botswana Teachers Union (BTU), Association of Botswana Tertiary Education Lecturers (ABOTEL), all of which were staff associations registered in terms of the Societies Act.

Today, Botswana has many registered trade unions within the public service, most of which are affiliates of BOFEPUSU which was formed in 2009 when most of its founding members defected from Botswana Federation of Trade Unions (BFTU).

BOFEPUSU’s founding members were BOPEU and the National Amalgamated Local and Central Government and Parastatal Workers Union (NALCGPWU), formerly Botswana Manual Workers Union. BFTU’s members are mainly private sector trade unions except for BOPEU, which disaffiliated from BOFEPUSU in 2015, and Botswana Government Workers Union (BOGOWU).

In 2016, there was yet another amendment to the Trade Disputes Act (TDA) whose principal object was “to provide for the settlement of trade disputes by the Commissioner of Labour, mediators and arbitrators; for the establishment of the Industrial Court as a court of law and equity; for the recognition of trade unions at the workplace and industry level; for the determination of industrial action, protection of essential services, life and property during industrial action; and for matters incidental or connected therewith.”

The year 2011 was a turning point in Botswana’s labour relations history. BOFEPUSU, following Government’s rejection of its 16% wage increase demand, embarked on countrywide public sector strike.

A total of 2 934 employees, who were deemed to be essential service employees and therefore had no right to strike, as held in The Attorney General v Botswana Land Boards & Local Authorities Workers Union and 3
Others
, Case No. CACGB-053-12, lost their jobs.

Government responded to the strike by widening the categorisation of essential services through Statutory Instrument No. 57 of 2011. Government used the Statutory Instrument, made under section 49 of the TDA, to declare certain professions, including teaching, as essential services.

BOFEPUSU referred the matter to the Courts which struck down section 49 of the TDA as unconstitutional in Botswana Land Boards & Local Authorities Workers Union v The Attorney General, Case No. MAHLB-000631-11 and The Attorney General v Botswana Land Boards & Local Authorities
Workers Union,
Case No. CACGB-053-12.

In July 2016, Botswana Federation of Public Service Unions (BOFEPUSU) reported Botswana to the International Labour Organization (ILO), accusing it of violating two core ILO Conventions, namely Conventions 87 (Freedom of Association and Protection of the Right to Organize) and 98 (The Right to Organize and Collective Bargaining) and having acted contrary to the ILO framework definition of essential services. Following the report, Botswana made the short list of top aggressors and violators out of 24 countries.

In 2017, following protracted court battles relating to Government’s unilateral salary increases outside the Public Service Bargaining Council (PSBC), which resulted in the Botswana Landboards, Local Authorities & Health Workers Union v Director of Public Service
Management
, Case No MAHGB-000343/16 case, Government did the unthinkable – derecognising the PSBC.

In what the trade unions characterised as victimisation of its leaders, Government attempted to transfer certain trade union leaders, resulting in such cases as Johannes Phalaagae Tshukudu v The Director of Public Service Management & the Attorney
General
Case No. ICUR 11/16; Koketso Joshua Ntopolelang v K. K Moepeng, High Court Case No. MAHGB-000628-14 and Koketso Joshua Ntopolelang v K. K Moepeng, Civil Appeal Case No. CACGB-106-16.

As late as 2018, while in the middle of negotiations with BOFEPUSU to revive the PSBC, Government wrote a letter to all public service trade unions threatening to derecognise them if they did not regularise their registration in terms of section 46 of the Public Service Act.

BOFEPUSU went to court and interdicted the intended action, arguing that they had always had recognition agreements with Government, long before the inception of the Public Service Act in 2010.

The unions argued that this issue was put to rest after Government conceded that public service unions recognised in terms of the Trade Unions and Employers Organizations Act did not need to apply for fresh recognition under the Public Service Act in the case of Botswana Land boards and Local Authorities Workers’ Union and Ors vs. Director, Public Service Management & Anor 2010(3) BLR 351 per Tshosa J (as he then was). In this case, applicants wanted the joining of other recognised public service trade unions in the settlement of the constitution for the PSBC.

In 2018, relations between government and labour changed for the better, almost going back to the pre-2011 era. The 2019/20 and 2020/21 salary negotiations were conducted in harmony resulting in a 10% and 6% salary increase for scales A and B and C and D respectively.

Also, government committed to the reconstitution of the PSBC; and through the Trade Disputes (Amendment), Bill No. 17 of 2019, Botswana Vaccine Laboratory Services, Bank of Botswana, Diamond sorting, cutting and selling services, Operational and Maintenance Services of the railways, Sewage services, Veterinary services in the public service, Teaching services, Government Broadcasting services as well as the Immigration and Customs services have been removed from the list of essential services.

*Ndulamo Anthony Morima, LLM(NWU); LLB(UNISA); DSE(UB); CoP (BAC); CoP (IISA) is the proprietor of Morima Attorneys. He can be contacted at 71410352 or anmorima@gmail.com

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