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Public Service Act, 2008 amendments: a review (Part I)

Ndulamo Anthony Morima
EAGLE WATCH

Government has tabled a Bill to amend the Public Service Act, 2008 (hereinafter referred to as the Act) before Parliament. In this two part series, we discuss the said amendments and comment on their propriety or lack thereof.

In this article, we discuss the following proposed amendments, namely: (a) forms of misconduct, (b) the enactment of rules of procedure to be followed in disciplinary matters by the Permanent Secretary to the President (PSP), and not to Public Service Bargaining Council (PSBC), and (c) that when reduction of salary is imposed as a punishment the consent of the employee shall not be required.

We also discuss the proposed amendments (d) that disputes, or appeals thereto, between public servants and the employer will be referred to the Commissioner of Labour in terms of the Trade Disputes Act, 2003 instead of the PSBC and (e) that a person holding “a management post” (and not “in senior management of the public service”) shall not engage in a strike or action short of a strike.

In the next article, we discuss the following proposed amendments, namely: (f) that the General Secretary of the PSBC, shall be appointed by the PSP from amongst employees of the Directorate of Public Service Management (DPSM) and (g) that only Public Officers can be representatives of trade unions admitted to the PSBC.

We also discuss the proposed amendments (h) that government can confer a benefit on an employee notwithstanding ongoing negotiations, (i) that recognition will entitle a union to one seat at the PSBC and (j) that those suspended from duty will not be guaranteed full salary, but nothing less than half their salary.

We also discuss the proposed amendments (k) that the misconduct of engaging in an amorous or sexual relationship affects all public officers as opposed to teachers only as is currently the case and (l) the proposal to amend the Act by increasing punishments for certain offences.     

Before the discussion a brief background is apposite. As a member of the International Labour Organization (ILO), 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 of the right to organize for furthering and defending their interests.

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.

As a result of the ratification of these conventions Botswana passed the Act which, inter alia, gave public servants the right to unionize. Hitherto, public servants could only belong to staff associations as was the case with Botswana Public Employees Union (BOPEU)’s predecessor, Botswana Civil Service Association (BCSA), for example.   

I have earlier written in this column that government is likely to take advantage of the divisions within the trade union movement, in particular the conflict between BOFEPUSU and the Botswana Public Employees Union (BOPEU), to enact legislation or amend existing legislation to enhance its stranglehold over the workers.

I have also earlier written that some have advised government that the Act brought ‘too much liberalization’ within the labour environment, something which is a threat to the ruling Botswana Democratic Party (BDP)’s rule considering that most trade unions seem to be aligned to the Opposition.

It would appear that teachers are the biggest threat to the BDP, perhaps because the two largest teacher trade unions, Botswana Sectors of Educators Trade Union (BOSETU) and Botswana Teachers Union (BTU) are aligned to the Opposition Umbrella for Democratic Movement (UDC) through their federation, BOFEPUSU.  

Recently, the BDP has stated that it supports the controversial Bill to classify teaching as an essential service which, if passed, will take away the right to strike from teachers. The BDP Secretary General, Botsalo Ntuane, was quoted by Mmegi’s online edition of 7th July 2016 saying “The BDP supports the Bill in its entirety including classification of the teaching cadre as an essential service… This is an issue that the BDP caucus has discussed and which is informed by a resolution of the BDP National Council for the teaching cadre to be removed from the Act,”

First, the proposal that relates to forms of misconduct. Seemingly, four forms of misconduct have been added, namely (i) publicly speaking or demonstrating for or against any politician or political party, (ii) being an active member of, or holding office in any political party, (iii) publishing one’s views on political matters in writing and (iv) holding a Parliamentary seat or holding a political office in any local government body except where the office is held ex officio.

I have written before in this column that because they are expected to serve all citizens without favour and members of the public should be assured of unbiased service, it is wrong for public servants to be actively involved in politics. I also condemned BOFEPUSU’s alignment with the UDC. I still maintain this position. I, therefore, agree with the aforesaid proposed amendments.  

How can a citizen who is a well known member of the Opposition, for example, be confident that he or she has been assisted fairly if he or she is assisted by a public servant who is a well- known member of the ruling party?

Imagine a situation where a teacher, for example, is a Member of Parliament (MP) or Councilor! How will he or she divide his or her time between teaching and Parliament or Council? Can his or her supervisor be able to effectively supervise him or her? Can he or she relate well with students and fellow teachers?

Imagine a situation where a nurse, for example, clad in full political party regalia, participates in a demonstration against an area MP or against a particular political party! Can a citizen who is a well-known member of a political party which is rival to the nurse’s be comfortable when given medication by such a rival nurse?       

Second, the proposal to amend section 39 (2) of the Act by leaving the responsibility to enact rules of procedure to be followed in disciplinary matters to the Permanent Secretary to the President (PSP), and not to Collective Bargaining as is currently the case.

This, I disagree with. Giving such power to the PSP, who is in fact a political appointee, is prejudicial to public servants because he alone, obviously at the whims of his political master, the President, will effectively determine the fate of thousands of public servants without their input through their trade unions.     

Third, the proposal to amend the Act to the effect that when reduction of a salary is imposed as a punishment the consent of the employee shall not be required as is currently the case. Before deciding whether or not this proposed amendment is apposite a few questions ought to be considered.

Is it reasonable to expect a person who has been found guilty of an offence to consent to the punishment? Put differently, if not consenting to punishment would absolve an offender, without consequence, of the punishment would offenders consent to punishment? Certainly, none of these questions can be answered in the affirmative. This proposed amendment is, therefore, apposite otherwise no public servant would ever consent to a reduction of salary rendering the provision for such punishment meaningless.

Fourth, the proposal to amend the Act to the effect that disputes, or appeals thereto, between public servants and the employer will be referred to the Commissioner of Labour in terms of the Trade Disputes Act, 2003 instead of the Public Service Bargaining Council (PSBC).

The BOFEPUSU Secretary General, Tobokani Rari is right in arguing, as quoted in Mmegi’s online edition of 8th July 2016, that “…it is the more ideal forum for public servants with grievances against government as the officers presiding over the disputes are not public servants… It is furthermore open to everyone regardless of whether they are unionized or not and regardless of whether their union forms part of the PSBC.”

I disagree with this proposed amendment. It is international best practice that where there is a PSBC it performs, inter alia, dispute resolution functions. In South Africa, for example, clause 5.3 of the General Public Service Sectoral Bargaining Council (GPSSBC) gives such function to the GPSSBC.

Fifth, the proposal to amend section 47 of the Act by providing that a person holding “a management post” (and not “in senior management of the public service”) shall not engage in a strike or action short of a strike.

If indeed, as the proposed amendment provides, the term “management” means  “an employee or public officer who has authority, on behalf of his employer, to employ, transfer, suspend, lay off, recall, promote, terminate the employment of, reward, discipline or deal with the grievances relating to the employment of any fellow employees or effectively to recommend any such action or the manner in which such grievances ought to be dealt with, if the exercise by him or her of that authority is not merely of a routine or clerical nature but require the use of his her discretion” I am agreeable to the amendment.  

In fairness, it would be prejudicial to government if its managers who have such high level responsibilities and are entrusted with confidential and even secret information are allowed to engage in a strike or action short of a strike. It can even be prejudicial to the workers themselves since such managers may be used by government to gather information about the strike and give it to government.

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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
FATED “JIHADI” JOHN

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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