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Teaching is essential, but it is not an Essential Service!

Ndulamo Anthony Morima
EAGLE WATCH

It is clear that government is intent on declaring teaching an essential service and, therefore, legally taking the right to strike from Teachers. This is evidenced by government’s tabling of the Trade Dispute Act Amendment Bill which, inter alia, seeks to declare teaching an essential service.

This is not the first time government attempts to declare teaching an essential service. Prior to 2014, government, through Statutory Instrument No. 57 of 2011, made by the then Minister of Labour and Home Affairs, Peter Siele, under Section 49, declared teaching, veterinary services, diamond sorting and transport services as essential services.

Fortunately, Justice Professor Oagile Key Dingake reversed the decision, declaring section 49 of the Trade Disputes Act incompatible with the Constitution and thus invalid. He also declared as invalid Statutory Instrument No. 57 of 2011, made under Section 49.

It will be remembered with delight that on 22nd April 2014 the Court of Appeal (CoA) upheld Justice Professor Dingake’s ruling. The appeal to the CoA concerned the extent to which, if at all, Parliament has the power to delegate its constitutionally conferred legislative function to the Executive.

Justice Ian Kirby, with Justices Lord Alistair Abernethy, Isaac Lesetedi, Monametsi Gaongwalelwe and Lord Arthur Hamilton concurring, held that the decision as to which services or categories of services should be classified as essential services is an important policy matter properly to be debated in Parliament and to be subjected to public scrutiny.

The Justices of Appeal held that “…this is more so because, in the case of the teachers and other public servants … the right to strike was only fairly recently conferred upon them by an Act of Parliament, after full debate.”  

Government needs to be commended for, owing to its respect for the rule of law, obliging to the ruling of the CoA, and now seeking to bring the amendments through Parliament. From a procedural point of view, the major complaint now seems to be that government took the Bill to Parliament before full consultations with such stakeholders as Teachers themselves and their respective trade unions.      

In this article, we discuss whether, from a substantive point of view, teaching is an essential service. It ought to be stated upfront that the article is informed by an Equal Education Position Paper on Teaching as an Essential Service of February 2013. The position paper, written in the South African context, is based on a document prepared for Equal Education by Debbie Budlender.

Botswana is a member of the International Labour Organization (ILO). It is on record that the Freedom of Association Committee of the Governing Body of the ILO (hereinafter referred to as The Committee) has repeatedly confirmed that education cannot be considered an essential service whatever the circumstances.
The Committee has made it clear that declaring teaching an essential service – and thus outlawing strikes by Teachers – is neither a reasonable nor justifiable criteria for limiting any right in a member State’s laws of which the right to strike is one.

Botswana, in 1997, ratified the Freedom of Association and Protection of the Right to Organize Convention 87 which aims at safeguarding the free exercise by workers and employers alike of the right to organize for furthering and defending their interests.

Further, still in 1997, Botswana ratified the Right to Organize and Collective Bargaining Convention 98 which further elaborates the rights set forth in convention 87. The convention aims at protecting workers exercising the right to organize, preventing interference in workers and employers organizations and promoting voluntary collective bargaining.

Particularly with respect to the public service, Botswana, still in 1997, ratified the Labour Relations (Public Service) Convention, which guarantees the right to organize for workers in the public sector.

The aforesaid conventions, which Botswana ratified, unequivocally confirm, among others, the rights of workers to organize into trade unions, with the right to strike as an “intrinsic corollary” (ILO, 2006: 523).

There is no doubt that teaching is essential. The question is: is teaching an essential service in the strict definition of the word? Internationally, an essential service is defined as a service the interruption of which endangers the life, personal safety or health of the whole or any part of the population.

The question then becomes: can the interruption of teaching endanger the life, personal safety or health of the whole or any part of our population? In my view, it cannot and that seems to be the view of the international community. It seems to be accepted internationally that Teachers should enjoy the right to strike.   

In 1966, at the Special Intergovernmental Conference on the Status of Teachers, held in Paris, the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted a resolution which in part stated that “… Appropriate joint machinery should be set up to deal with the settlement of disputes between the teachers and their employers arising out of terms and conditions of employment…”

The resolution continued to say “… If the means and procedures established for these purposes should be exhausted or if there should be a breakdown in negotiations between the parties, teachers' organizations should have the right to take such other steps as are normally open to other organizations in the defence of their legitimate interests.” It is submitted that the phrase  ‘ take such other steps as are normally open to other organizations in the defence of their legitimate interests’ refers to industrial action, including as strikes.

According to the fifth edition of the Digest published in 2006 (para 541), The Committee has repeatedly emphasized that “the prohibition of strikes could only be acceptable in the case of public servants exercising authority in the name of the State [such as justice or police] or of workers in essential services in the strict sense of the term, i.e. services whose interruption could endanger the life, personal safety or health of the whole or part of the population (541, 581)”.
 
Incontrovertible examples of essential services in the strict sense of the term include those in the schedule of essential services in the Trade Disputes Act, 2003, namely Air traffic control services, health services, sewage services, water services, fire services, e.t.c. Including teaching in this list is an unreasonable and unjustifiable limitation of the right to strike by teachers.

Commenting on the Trade Dispute Act Amendment Bill in Parliament recently Minister of Foreign Affairs and International Cooperation, Dr. Pelonomi Venson-Moitoi said “…we can allow them to strike but for a few hours…” citing the case of Britain which she said allows teachers to strike only for two hours. But, would it be constitutional to limit the teachers’ right to strike to a time period?

I submit that it would not. Besides, it would make the right to strike meaningless because the employer would make arrangements for the two hours, for example, and would not suffer any detriment that can force it to consider the teachers’ demands. The power of a strike is to make the employer suffer detriment for an indefinite period of time, and if that is taken away a strike becomes meaningless.

While it is acknowledged that what constitutes endangerment to the life, personal safety or health of the whole or any part of the population may differ from country to country and that, a non-essential service may become essential if a strike lasts a long time (Digest: 582), it has also been stated that the meaning of essential services might lose its meaning if it was applied to services that do not endanger life, personal safety or the health of the population (Digest: 583).

Dr. Moitoi is further quoted as saying “…if indeed we want better education for our children, we cannot let teachers strike for months…” That is true. But, it is equally true that if indeed we want better education we cannot let teachers grievances go on for months for an unhappy teacher cannot deliver quality education to our children.

Besides, the possibility that teachers can strike for months does not justify taking away their right to strike. It has been rightly stated that the possible long-term consequences of strikes in the teaching sector do not justify their prohibition (Digest: 590).

In the result, government should consider other options before taking away the right to strike from teachers. For example, though I do not fully agree with setting time limits for a strike, Dr. Moitoi’s suggestion may be an option provided the time limit given is reasonable, say one month.

Also, teaching may remain as a non-essential service, but a provision be made for a minimum operational service. Rather than outlawing strikes for teachers, there can be a requirement that a limited number of specified types of workers are available to do work deemed necessary during the strike. However, this should not entail “calling into question the right to strike of the large majority of workers” (Digest: 607).

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DIS Parley Committee selection disingenuous 

25th November 2020

Intelligence and Security Service Act, which is a law that establishes the Directorate of Intelligence and Security Service (DIS), provides for establishment of a Parliamentary Committee. Recently, the President announced nine names of Members of Parliament he had appointed to the Committee.

This announcement was preceded by a meeting the President held with the Speaker and the Leader of Opposition. Following the announcement of Committee MPs by the President, the opposition, through its leader, made it clear that it will not participate in the Committee unless certain conditions that would ensure effective oversight are met. The opposition acted on the non-participation threat through resignation of its three MPs from the Committee.

The Act at Section 38 provides for the establishment of the Committee to examine the expenditure, administration and policy of the Directorate. The law provides that the Parliamentary Committee shall have the same powers and privileges set out under the National Assembly (Powers and Privileges) Act.

On composition, the Committee shall consist of nine members who shall not be members of Cabinet and its quorum shall be five members.  The MPs in the Committee elect a chairperson from among their number at their first meeting.

The Members of the Committee are appointed by the President after consultation with the Speaker of the National Assembly and Leader of the Opposition in the National Assembly. It is the provision of the law that the Committee, relative to its size, reflect the numerical strengths of the political parties represented in the National Assembly.

The Act provides that that a member of the Committee holds office for the duration of the Parliament in which he or she is appointed.  The Committee is mandated to make an annual report on the discharge of their functions to the President and may at any time report to him or her on any matter relating to the discharge of those functions.

The Minister responsible for intelligence and security is obliged to lay before the National Assembly a copy of each annual report made by the Committee together with a statement as to whether any matter has been excluded from that copy in pursuance of the provision of the Act.

If it appears to the Minister, after consultation with the Parliamentary Committee, that the publication of any matter in a report would be prejudicial to the continued discharge of the functions of the Directorate, the Minister may exclude that matter from the copy of the report as laid before the National Assembly.

So, what are the specific demands of the Opposition and why are they not participating in the Committee? What should happen as a way forward? The Opposition demanded that there be a forensic audit of the Directorate. The DIS has never been audited since it was set up in 2008, more than a decade ago.

The institution has been a law unto itself for a longtime, feared by all oversight bodies. The Auditor General, who had no security of tenure, could not audit the DIS. The Directorate’s personnel, especially at a high level, have been implicated in corruption.  Some of its operatives are in courts of law defending corruption charges preferred against them. Some of the corruption cases which appeared in the media have not made it to the courts.

The DIS has been accused of non-accountability and unethical practices as well as of being a burden on the fiscus.  So, the Opposition demanded, from the President, a forensic audit for the purpose of cleaning up the DIS.  They demand a start from a clean slate.

The second demand by the Opposition is that the law be reviewed to ensure greater accountability of the DIS to Parliament. What are some of the issues that the opposition think should be reviewed? The contention is that the executive cannot appoint a Committee of Parliament to scrutinize an executive institution.

Already, it is argued, Parliament is less independent and it is dominated by the executive. It is contended that the Committee should be established by the Standing Orders and be appointed by a Select Committee of Parliament. There is also an argument that the Committee should report to Parliament and not to the President and that the Minister should not have any role in the Committee.

Democratic and Parliamentary oversight of the intelligence is relatively a new phenomenon across the World. Even developed democracies are still grappling with some of these issues. However, there are acceptable standards or what might be called international best practices which have evolved over the past two or so decades.

In the UK for instance, MPs of the Intelligence and Security Committee are appointed by the Houses of Parliament, having been nominated by the Prime Minister in consultation with the Leader of the Opposition. This is a good balancing exercise of involvement of both the executive and the legislature. Consultation is taken for granted in Botswana context in the sense that it has been reduced to just informing the Leader of Opposition without much regard to his or her ideas; they are never taken seriously.

Furthermore, the current Committee in the UK has four Members of the ruling party and five MPs from the opposition. It is a fairly balanced Committee in terms of Parliamentary representation. However, as said above, the President of Botswana appointed six ruling party MPs and three from the opposition.

The imbalance is preposterous and more pronounced with clear intentions of getting the executive way through the ruling party representatives in the Committee. The intention to avoid scrutiny is clear from the numbers of the ruling party MPs in the Committee.

There is also an international standard of removing sensitive parts which may harm national security from the report before it is tabled in the legislature. The previous and current reluctance of the executive arms to open up on Defence and Security matters emanate from this very reason of preserving and protecting national security.

But national security should be balanced with public interest and other democratic principles. The decision to expunge certain information which may be prejudicial to national security should not be an arbitrary and exclusive decision of the executive but a collective decision of a well fairly balanced Committee in consultation with the Speaker and the minister responsible.

There is no doubt that the DIS has been a rogue institution. The reluctance by the President to commit to democratic-parliamentary oversight reforms presupposes a lack of commitment to democratization. The President has no interest in seeing a reformed DIS with effective oversight of the agency.

He is insincere. This is because the President loathes the idea losing an iota of power and sharing it with any other democratic institution. He sees the agency as his power lever to sustain his stay in the high office. He thought he could sanitize himself with an ineffective DIS Committee that would dance to his tune.

The non-participation of the opposition MPs renders the Committee dysfunctional; it cannot function as this would be unlawful. Participation of the opposition is a legal requirement. Even if it can meet, it would lack legitimacy; it cannot be taken seriously. The President should therefore act on the oversight demands and reform the DIS if he is to be taken seriously.

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The Maccabean Uprising

25th November 2020
Jewish freedom fighters

 Jews drive away occupying power under the command of guerrilla leader Judas Maccabees but only just

Although it was the Desolation Sacrilege act, General Atiku, that officially sparked the Maccabean revolt, it in truth simply stoked the fires of an already simmering revolution. How so General?

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Atomic (CON)Fusion

25th November 2020

For years I have trained people about paradigm shifts – those light-bulb-switch-on moments – where there is a seismic change from the usual way of thinking about something to a newer, better way. 

I like to refer to them as ‘aha’ moments because of the sudden understanding of something which was previously incomprehensible. However,  the topic of today’s article is the complete antithesis of ‘aha’.  Though I’d love to tell you I’d had a ‘eureka ‘, ‘problem solved’ moment, I am faced with the complete opposite – an ‘oh-no’ moment or Lost Leader Syndrome.

No matter how well prepared or capable a leader is. they often find themselves facing perplexing events, confounding information, or puzzling situations. Confused by developments of which they can’t make sense and by challenges that they don’t know how to solve they become confused, sometimes lost and completely clueless about what to do.

I am told by Jentz and Murphy (JM) in ‘What leaders do when they don’t know what to do’ that this is normal, and that rapid change is making confusion a defining feature of management in the 21st century.  Now doesn’t that sound like the story of 2020 summed up in a single sentence?

The basic premise of their writing is that “confusion is not a weakness to be ashamed of but a regular and inevitable condition of leadership. By learning to embrace their confusion, managers are able to set in motion a constructive process for addressing baffling issues.

In fact, confusion turns out to be a fruitful environment in which the best managers thrive by using the instability around them to open up better lines of communication, test their old assumptions and values against changing realities, and develop more creative approaches to problem solving.”

The problem with this ideology however is that it doesn’t help my overwhelming feelings of fear and panic which is exacerbated by a tape playing on a loop in my head saying  ‘you’re supposed to know what to do, do something’. My angst is compounded by annoying motivational phrases also unhelpfully playing in my head like.

  • Nothing happens until something moves
  • The secret of getting ahead is getting started

and

  • Act or be acted upon

All these platitudes are urging me to pull something out of the bag, but I know that this is a trap. This need to forge ahead is nothing but a coping mechanism and disguise. Instead of owning the fact that I haven’t got a foggy about what to do, part of me worries that I’ll lose authority if I acknowledge that I can’t provide direction – I’m supposed to know the answers, I’m the MD!  This feeling of not being in control is common for managers in ‘oh no’ situations and as a result they often start reflexively and unilaterally attempting to impose quick fixes to restore equilibrium because, lets be honest, sometimes we find it hard to resist hiding our confusion.

To admit that I am lost in an “Oh, No!” moment opens the door not only to the fear of losing authority but also to a plethora of other troubling emotions and thoughts:  *Shame and loss of face: “You’ll look like a fool!” * Panic and loss of control: “You’ve let this get out of hand!” * Incompetence and incapacitation: “You don’t know what you’re doing!”

As if by saying “I’m at a loss here” is tantamount to declaring “I am not fit to lead.” Of course the real problem for me and any other leader is if they don’t admit when they are disoriented, it sends a signal to others in the organisation stating it’s not cool to be lost and that, by its very nature encourages them to hide.  What’s the saying about ‘a real man never asks for direction. ..so they end up driving around in circles’.

As managers we need to embrace the confusion, show vulnerability (remember that’s not a bad word) and accept that leadership is not about pretending to have all the answers but about having the courage to search with others to discover a solution.

JM point out that “being confused, however, does not mean being incapacitated.  Indeed, one of the most liberating truths of leadership is that confusion is not quicksand from which to escape but rather the potter’s clay of leadership – the very stuff with which managers can work.”

2020 has certainly been a year to remember and all indications are that the confusion which has characterised this year will still follow us into the New Year, thereby making confusion a defining characteristic of the new normal and how managers need to manage. Our competence as leaders will then surely be measured not only by ‘what I know’ but increasingly by ‘how I behave when I accept, I don’t know, lose my sense of direction and become confused.

.I guess the message for all organizational cultures going forward is that sticking with the belief that we need all-knowing, omni-competent executives will cost them dearly and send a message to managers that it is better to hide their confusion than to address it openly and constructively.

Take comfort in these wise words ‘Confusion is a word we have invented for an order not yet understood’!

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