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

Ndulamo Anthony Morima

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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Is COVID-19 Flogging an Already Dead Economic Horse?

9th September 2020

The Central Bank has by way of its Monetary Policy Statement informed us that the Botswana economy is likely to contract by 8.9 percent over the course of the year 2020.

The IMF paints an even gloomier picture – a shrinkage of the order of 9.6 percent.  That translates to just under $2 billion hived off from the overall economic yield given our average GDP of roughly $18 billion a year. In Pula terms, this is about P23 billion less goods and services produced in the country and you and I have a good guess as to what such a sum can do in terms of job creation and sustainability, boosting tax revenue, succouring both recurrent and development expenditure, and on the whole keeping our teeny-weeny economy in relatively good nick.

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Union of Blue Bloods

9th September 2020

Joseph’s and Judah’s family lines conjoin to produce lineal seed

Just to recap, General Atiku, the Israelites were not headed for uncharted territory. The Promised Land teemed with Canaanites, Hittites, Amorites, Perizzites, Hivites, and Jebusites. These nations were not simply going to cut and run when they saw columns of battle-ready Israelites approach: they were going to fight to the death.

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Security Sector Private Bills: What are they about?

9th September 2020

Parliament has begun debates on three related Private Members Bills on the conditions of service of members of the Security Sector.

The Bills are Prisons (Amendment) Bill, 2019, Police (Amendment) Bill, 2019 and Botswana Defence Force (Amendment) Bill, 2019. The Bills seek to amend the three statutes so that officers are placed on full salaries when on interdictions or suspensions whilst facing disciplinary boards or courts of law.

In terms of the Public Service Act, 2008 which took effect in 2010, civil servants who are indicted are paid full salary and not a portion of their emolument. Section 35(3) of the Act specifically provides that “An employee’s salary shall not be withheld during the period of his or her suspension”.

However, when parliament reformed the public service law to allow civil servants to unionize, among other things, and extended the said protection of their salaries, the process was not completed. When the House conferred the benefit on civil servants, members of the disciplined forces were left out by not accordingly amending the laws regulating their employment.

The Bills stated above seeks to ask Parliament to also include members of the forces on the said benefit. It is unfair not to include soldiers or military officers, police officers and prison waders in the benefit. Paying an officer who is facing either external or internal charges full pay is in line with the notion of ei incumbit probation qui dicit, non qui negat or the presumption of innocence; that the burden of proof is on the one who declares, not on one who denies.

The officers facing charges, either internal disciplinary or criminal charges before the courts, must be presumed innocent until proven otherwise. Paying them a portion of their salary is penalty and therefore arbitrary. Punishment by way of loss of income or anything should come as a result of a finding on the guilt by a competent court of law, tribunal or disciplinary board.

What was the rationale behind this reform in 2008 when the Public Service Act was adopted? First it was the presumption of innocence until proven otherwise.

The presumption of innocence is the legal principle that one is considered “innocent until proven guilty”. In terms of the constitution and other laws of Botswana, the presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN’s Universal Declaration of Human Rights, Article 11.

Withholding a civil servant’s salary because they are accused of an internal disciplinary offense or a criminal offense in the courts of law, was seen as punishment before a decision by a tribunal, disciplinary board or a court of law actually finds someone culpable. Parliament in its wisdom decided that no one deserves this premature punishment.

Secondly, it was considered that people’s lives got destroyed by withholding of financial benefits during internal or judicial trials. Protection of wages is very important for any worker. Workers commit their salaries, they pay mortgages, car loans, insurances, schools fees for children and other things. When public servants were experiencing salary cuts because of interdictions, they lost their homes, cars and their children’s future.

They plummeted into instant destitution. People lost their livelihoods. Families crumbled. What was disheartening was that in many cases, these workers are ultimately exonerated by the courts or disciplinary tribunals. When they are cleared, the harm suffered is usually irreparable. Even if one is reimbursed all their dues, it is difficult to almost impossible to get one’s life back to normal.

There is a reasoning that members of the security sector should be held to very high standards of discipline and moral compass. This is true. However, other more senior public servants such as judges, permanent secretary to the President and ministers have faced suspensions, interdictions and or criminal charges in the courts but were placed on full salaries.

The yardstick against which security sector officers are held cannot be higher than the aforementioned public officials. It just wouldn’t make sense. They are in charge of the security and operate in a very sensitive area, but cannot in anyway be held to higher standards that prosecutors, magistrates, judges, ministers and even senior officials such as permanent secretaries.

Moreover, jail guards, police officers and soldiers, have unique harsh punishments which deter many of them from committing misdemeanors and serious crimes. So, the argument that if the suspension or interdiction with full pay is introduced it would open floodgates of lawlessness is illogical.

Security Sector members work in very difficult conditions. Sometimes this drives them into depression and other emotional conditions. The truth is that many seldom receive proper and adequate counseling or such related therapies. They see horrifying scenes whilst on duty. Jail guards double as hangmen/women.

Detectives attend to autopsies on cases they are dealing with. Traffic police officers are usually the first at accident scenes. Soldiers fight and kill poachers. In all these cases, their minds are troubled. They are human. These conditions also play a part in their behaviors. They are actually more deserving to be paid full salaries when they’re facing allegations of misconduct.

To withhold up to 50 percent of the police, prison workers and the military officers’ salaries during their interdiction or suspensions from work is punitive, insensitive and prejudicial as we do not do the same for other employees employed by the government.

The rest enjoy their full salaries when they are at home and it is for a good reason as no one should be made to suffer before being found blameworthy. The ruling party seems to have taken a position to negate the Bills and the collective opposition argue in the affirmative. The debate have just began and will continue next week Thursday, a day designated for Private Bills.

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