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BOFEPUSU-BOPEU fight costs public servants!

Ndulamo Anthony Morima

Following Botswana Public Employees Union (BOPEU)’s disaffiliation from Botswana Federation of Public Service Unions (BOFEPUSU) I wrote an article in which I discussed the labour implications of such disaffiliation.

I opined then that some of the labour implications of the disaffiliation are that the members that BOPEU will take way from BOFEPUSU will weaken BOFEPUSU’s influence and bargaining power; BOPEU will lose the solidarity and support it enjoyed from the other BOFEPUSU affiliates; and BOPEU will lose the benefit of representation by BOFEPUSU at the International Labour Organization (ILO).

I also argued that as a result of BOPEU’s disaffiliation from BOFEPUSU the latter will lose the intellect and leadership prowess of some of BOPEU’s leaders and members; BOFEPUSU will be weakened by the loss of membership subscriptions it has been getting from BOPEU and because of the rivalry that will inevitably prevail between BOFEPUSU and BOPEU the workers’ cause is likely to be compromised as a result of in-fighting and sabotage.

Further that, incredible as it may sound, BOPEU’s disaffiliation from BOFEPUSU will deny the latter access to strategic government information and the fall out caused by BOPEU’s disaffiliation from BOFEPUSU may result in some members of public sector trade unions resigning because of loss of faith and confidence on trade unionism.

It was also my argument that if the divisions within the trade union movement wider and trade unions, especially at a federation level, become weaker, government may exploit the situation by enacting anti-labour legislation in anticipation of limited resistance by the weakened public sector trade unions.

Before the ink on BOPEU’s disaffiliation letter dried, one of the aforesaid implications has been actualized. In an unprecedented move BOPEU successfully moved an urgent application at the Industrial Court of Botswana(IC) in which it prayed that the IC declares that BOFEPUSU is not entitled to membership of the Public Service Bargaining Council (PSBC). BOFEPUSU has since appealed the judgment by Judge President Tebogo Maruping.

True to the adage that ‘when elephants fight it is the grass that suffers’, this fight between BOPEU and BOFEPUSU has cost public servants in several respects. Firstly, government has taken advantage of the uncertainty on the existence of the PSBC by unilaterally increasing public servants’ salaries for the 2016/17 financial year by 3% across the board increase.

Also, if it true that BOFEPUSU had intended to, through the PSBC, propose a 13.5 % salary increment and a 10% housing allowance for all public service employees, the fight between BOPEU and BOFEPUSU has indeed cost public service employees. It is indeed a suicidal fight.

Granted, BOFEPUSU would most likely not get all its demands, but a possibility exists that a united BOFEPUSU would push Government to at least settle for an above inflation salary increase of say 4.5%. But now that Government knows that a BOFEPUSU strike without BOPEU is unlikely, and if it obtains would be ineffective, it is prepared to dare BOFEPUSU and by extension public servants.    

The BOPEU-BOFEPUSU debacle notwithstanding, Government deserves rebuke for its intransigence and disrespect for the rule of law. It is common cause that in terms of the Public Service Act and the PSBC constitution, Government is bound to negotiate salaries and conditions of service through the PSBC of which it is a party.

The fact that there is a case currently before the Court of Appeal which touches on the existence of the PSBC does not give Government a warrant to disregard the PBSC. Until the Court of Appeal renders its verdict on the matter the PSBC is lawfully in existence and its processes should be respected by all member parties.

BOFEPUSU’s Secretary General, Tobokani Rari, is quoted as saying “one of BOPEU’s prayers in the case, which we are appealing, is that they wanted negotiations stopped pending the outcome of the case. The process is incomplete yet, so one cannot say the PSBC is defunct… Even if the PSBC has been dismantled, which we disagree with, the employer is bound to engage recognised unions…” Rari cannot have been more right.

Disregarding the PSBC, as Government did, in making the 3% unilateral salary increase is tantamount to disrespecting the rule of law. This is a regrettable erosion of our democracy which has serious implications not only with respect to the rule of law, but also in relation to democracy in general. This conduct is inconsistent with our reputation as an internationally acclaimed beacon of democracy.

Firstly, it raises suspicion as to whether or not Government is privy to what will be the outcome of the appeal. The question is: Is Government making the 3% unilateral salary increase because it knows that BOFEPUSU’s appeal will be dismissed?

Secondly, it raises the question as to whether Government deliberately wants to render the Court of Appeal judgment meaningless should it favour BOFEPUSU. Government knows that once it has implemented the salary increase, the courts of law, in terms of the doctrine of separation of powers and/or for policy considerations, are unlikely to reverse the increase.

Also, public servants, having already benefited from the increase, are likely to be opposed to BOFEPUSU’s efforts to have the increase declared null and void and set aside. For some public servants, semi darkness is better than utter darkness. In any event, some say, a negotiation at the PSBC even if it is ordered by the court is unlikely to yield an increase higher than 3%.

It is disturbing that the trend whereby Government deliberately, in anticipation, renders court judgments meaningless is growing. Recently, while the case between government and the Botswana National Youth Council (BNYC) relating to the dissolution of the latter was pending before the High Court, Government proceeded with appointing BNYC’s National Executive Committee (NEC) and transferring BNYC’s assets to government.

The unilateral salary increase issue is not the only indication that Government is intent on exploiting the fight between BOPEU and BOFEPUSU. Recently, the Minister of Labour and Home Affairs, Honourable Edwin Batshu, tabled a paper proposing amendment to the Trade Disputes Act.

In terms of the proposed amendment Bill, Government wants the Minister empowered to declare a service that is not essential, essential when workers absent themselves during a lengthy strike that may endanger the lives, safety or health of citizens. This would effectively render the right to industrial action or strike meaningless.

Government also intends to take advantage of the standoff between BOPEU and BOFEPUSU to pass the Botswana Examinations Council (BEC) Amendment Bill of 2015, further prejudicing teachers. The Bill proposes that the responsibility for invigilation or supervision of coursework or examination arising and relating to all examinable subjects offered in an examination centre shall remain the responsibility of the examination centre. It also gives the employer the privilege to direct teachers in an examination centre to invigilate candidates sitting for examinations.

As much as we blame Government for reneging on its promise to respect the rule of law, we should even more so blame BOPEU and BOFEPUSU for providing an opportunity for Government to derogate public servants’ rights. After all, the relationship between any Government and trade unions is an adversarial one where both parties do all they can to protect their interests.

Hitherto, I wrote an article in which I argued that the only way to end the feud between BOPEU and BOFEPUSU is by mediation and not by litigation. I reiterate this argument and once again call upon Faith Based Organizations, Civil Society, the media, the Opposition and Attorneys for BOPEU and BOFEPUSU to mediate between BOPEU and BOFEPUSU.        

Ndulamo Anthony Morima

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Chronic Joblessness: How to Help Curtail it

30th November 2020
Motswana woman

The past week or two has been a mixed grill of briefs in so far as the national employment picture is concerned. BDC just injected a further P64 million in Kromberg & Schubert, the automotive cable manufacturer and exporter, to help keep it afloat in the face of the COVID-19-engendered global economic apocalypse. The financial lifeline, which follows an earlier P36 million way back in 2017, hopefully guarantees the jobs of 2500, maybe for another year or two.

It was also reported that a bulb manufacturing company, which is two years old and is youth-led, is making waves in Selibe Phikwe. Called Bulb Word, it is the only bulb manufacturing operation in Botswana and employs 60 people. The figure is not insignificant in a town that had 5000 jobs offloaded in one fell swoop when BCL closed shop in 2016 under seemingly contrived circumstances, so that as I write, two or three buyers have submitted bids to acquire and exhume it from its stage-managed grave.

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The Era of “The Diplomat”

30th November 2020

Youngest Maccabees scion Jonathan takes over after Judas and leads for 18 years

Going hand-in-glove with the politics at play in Judea in the countdown to the AD era, General Atiku, was the contention for the priesthood. You will be aware, General, that politics and religion among the Jews interlocked. If there wasn’t a formal and sovereign Jewish King, there of necessity had to be a High Priest at any given point in time.

Initially, every High Priest was from the tribe of Levi as per the stipulation of the Torah. At some stage, however, colonisers of Judah imposed their own hand-picked High Priests who were not ethnic Levites. One such High Priest was Menelaus of the tribe of Benjamin.

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Land Board appointments of party activists is political corruption

30th November 2020

Parliament has rejected a motion by Leader of Opposition (LOO) calling for the reversing of the recent appointments of ruling party activists to various Land Boards across the country. The motion also called for the appointment of young and qualified Batswana with tertiary education qualifications.

The ruling party could not allow that motion to be adopted for many reasons discussed below. Why did the LOO table this motion? Why was it negated? Why are Land Boards so important that a ruling party felt compelled to deploy its functionaries to the leadership and membership positions?

Prior to the motion, there was a LOO parliamentary question on these appointments. The Speaker threw a spanner in the works by ruling that availing a list of applicants to determine who qualified and who didn’t would violate the rights of those citizens. This has completely obliterated oversight attempts by Parliament on the matter.

How can parliament ascertain the veracity of the claim without the names of applicants? The opposition seeks to challenge this decision in court.  It would also be difficult in the future for Ministers and government officials to obey instructions by investigative Parliamentary Committees to summon evidence which include list of persons. It would be a bad precedent if the decision is not reviewed and set aside by the Business Advisory Committee or a Court of law.

Prior to independence, Dikgosi allocated land for residential and agricultural purposes. At independence, land tenures in Botswana became freehold, state land and tribal land. Before 1968, tribal land, which is land belonging to different tribes, dating back to pre-independence, was allocated and administered by Dikgosi under Customary Law. Dikgosi are currently merely ‘land overseers’, a responsibility that can be delegated. Land overseers assist the Land Boards by confirming the vacancy or availability for occupation of land applied for.

Post-independence, the country was managed through modern law and customary law, a system developed during colonialism. Land was allocated for agricultural purposes such as ploughing and grazing and most importantly for residential use. Over time some land was allocated for commercial purpose. In terms of the law, sinking of boreholes and development of wells was permitted and farmers had some rights over such developed water resources.

Land Boards were established under Section 3 of the Tribal Land Act of 1968 with the intention to improve tribal land administration. Whilst the law was enacted in 1968, Land Boards started operating around 1970 under the Ministry of Local Government and Lands which was renamed Ministry of Lands and Housing (MLH) in 1999. These statutory bodies were a mechanism to also prune the powers of Dikgosi over tribal land. Currently, land issues fall under the Ministry of Land Management, Water and Sanitation Services.

There are 12 Main Land Boards, namely Ngwato, Kgatleng, Tlokweng, Tati, Chobe, Tawana, Malete, Rolong, Ghanzi, Kgalagadi, Kweneng and Ngwaketse Land Boards.  The Tribal Land Act of 1968 as amended in 1994 provides that the Land Boards have the powers to rescind the grant of any rights to use any land, impose restrictions on land usage and facilitate any transfer or change of use of land.

Some land administration powers have been decentralized to sub land boards. The devolved powers include inter alia common law and customary law water rights and land applications, mining, evictions and dispute resolution. However, decisions can be appealed to the land board or to the Minister who is at the apex.

So, land boards are very powerful entities in the country’s local government system. Membership to these institutions is important not only because of monetary benefits of allowances but also the power of these bodies. in terms of the law, candidates for appointment to Land Boards or Subs should be residents of the tribal areas where appointments are sought, be holders of at least Junior Certificate and not actively involved in politics.  The LOO contended that ruling party activists have been appointed in the recent appointments.

He argued that worse, some had no minimum qualifications required by the law and that some are not inhabitants of the tribal or sub tribal areas where they have been appointed. It was also pointed that some people appointed are septuagenarians and that younger qualified Batswana with degrees have been rejected.

Other arguments raised by the opposition in general were that the development was not unusual. That the ruling party is used to politically motivated appointments in parastatals, civil service, diplomatic missions, specially elected councilors and Members of Parliament (MPs), Bogosi and Land Boards. Usually these positions are distributed as patronage to activists in return for their support and loyalty to the political leadership and the party.

The ruling party contended that when the Minister or the Ministry intervened and ultimately appointed the Land Boards Chairpersons, Deputies and members , he didn’t have information, as this was not information required in the application, on who was politically active and for that reason he could not have known who to not appoint on that basis. They also argued that opposition activists have been appointed to positions in the government.

The counter argument was that there was a reason for the legal requirement of exclusion of political activists and that the government ought to have mechanisms to detect those. The whole argument of “‘we didn’t know who was politically active” was frivolous. The fact is that ruling party activists have been appointed. The opposition also argued that erstwhile activists from their ranks have been recruited through positions and that a few who are serving in public offices have either been bought or hold insignificant positions which they qualified for anyway.

Whilst people should not be excluded from public positions because of their political activism, the ruling party cannot hide the fact that they have used public positions to reward activists. Exclusion of political activists may be a violation of fundamental human or constitutional rights. But, the packing of Land Boards with the ruling party activists is clear political corruption. It seeks to sow divisions in communities and administer land in a politically biased manner.

It should be expected that the ruling party officials applying for land or change of land usage etcetera will be greatly assisted. Since land is wealth, the ruling party seeks to secure resources for its members and leaders. The appointments served to reward 2019 election primary and general elections losers and other activists who have shown loyalty to the leadership and the party.

Running a country like this has divided it in a way that may be difficult to undo. The next government may decide to reset the whole system by replacing many of government agencies leadership and management in a way that is political. In fact, it would be compelled to do so to cleanse the system.

The opposition is also pondering on approaching the courts for review of the decision to appoint party functionaries and the general violation of clearly stated terms of reference. If this can be established with evidence, the courts can set aside the decision on the basis that unqualified people have been appointed.

The political activism aspect may also not be difficult to prove as some of these people are known activists who are in party structures, at least at the time of appointment, and some were recently candidates. There is a needed for civil society organizations such as trade unions and political parties to fight some of these decisions through peaceful protests and courts.

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