Bofepusu aja terminates psbc recognition
For the last several years affiliates of Botswana Federation of Public Parastatal and Private Sectors Unions have been engaged in non-ending battles with the Government of Botswana to try and respect the Public Service Bargaining Council (“PSBC”) and collective bargaining rights. In 2013 President Khama went around the country proclaiming to be a trade union on his own and announcing a unilateral 4% increment. The High Court, per Justice Leburu held that the President’s acts were breach of Government’s duty to bargain in good faith. In 2016 Government again resorted to a unilateral increment of 3%. The 3% increment was held by the High Court per Justice Motswagole to be a breach of the duty to bargain in good faith and set aside in respect of all employees. A 4% increment was awarded for the year 2017, the increment was interdicted temporarily by Justice Motswagole and made returnable on 24 May 2017.
Prior to the return day, the Government and its sweetheart union, the Botswana Public Employees’ Union brought an application for stay before the Court of Appeal, contrary to well established practice that an application for stay must be filed before the High Court and contrary to established practice that an appellate judge should not intervene in respect of a matter that is still being considered by a lower court. The Government and the Botswana Public Employees’ Union circumvented Justice Motswagole and directly approached the Court of Appeal as they were fully aware that they were more likely to get a sympathetic ear at the Court of Appeal.
Attempts to get Justice Gaongalelwe to recuse himself were unsuccessful as he was itching to exercise jurisdiction over the matter. Gaongalelwe JA had been asked to recuse himself because there is a pending appeal case brought by the Manual Workers’ Union that concerns the validity of his appointment. In a bizarre ruling, Justice Gaongalelwe recognized that the ordinary rule was that an application for stay must be sought from the High Court judge who was seized with the merits of the matter, but shockingly found that there were exceptional circumstances which justified bypassing Justice Motswagole. Justice Gaongalelwe’s ruling undermines the rule of law as it served to encourage Government to disobey court orders and go running directly to the Court of Appeal to seek stay of execution. The ruling was interestingly delivered on the day that Justice Motswagole was to hear an application to have the Permanent Secretary President and Director of Public Service Management locked-up for contempt of court.
The ruling was in many respects incoherent, and surprisingly directed that the appeal that has been lodged by BOPEU and Government be heard only in October 2017, despite the fact that the Judge took the view that the matter was one of great public interest and needed to be given priority. It seems absurd that the matter could not be accommodated in the July Court of Appeal session given that the roll has not yet been finalized.
The continued disregard of collective bargaining rights by Government, who have found an ally in BOPEU, and Justice Gaongalelwe, whose abilities as judge we have always had question marks about, has led us to conclude that only a political solution can resolve the continued disregard of bargaining rights of public service employees. Our attempts to bargain collectively have been frustrated every year by the Government and the courts seem to be feeble in their enforcement of the collective labour rights of workers. Draconian provisions such as a provision that appear to give Government 3 months to comply with court orders are indiscriminately cited by judges, like Justice Gaongalelwe who fail to appreciate that the rule of law requires that court orders be obeyed by every person without distinction. This was not a shock to BOFEPUSU as he was a lone dissenting voice in the recent judgment invalidating the decision of the President to reject the appointment of Mr. Motumise as a judge.
BOFEPUSU decided to forthwith terminate the participation of its affiliates at the PSBC until 2019, when hopefully there will be a new regime that supports the rights of workers. We do not leave the PSBC because of any compliance issues, as we have the necessary membership to continue being members and have paid the membership fees, but to do so out of the need to save our time and meagre resources and channel them into something productive.
We look forward to a change of regime in 2019 that will usher in a credible judiciary, where judges are appointed on merit and not because of their allegiance to the establishment. Our energies henceforth will be devoted to bringing about regime change in the country in 2019. Only a new regime can save the country from the rot that has become with the leadership brazenly looting limited public resources and continuing to pay workers of this country peanuts. This the leadership is able to do because it has successfully captured every institution; from the legislature to all oversight institutions, including the judiciary and some trade unions.
Our decision to terminate our membership of the PSBC will free our members to receive the 3% and 4% increment that Government has been giving to its sweetheart unions. Our members have sacrificed immensely to date and we applaud them for their sacrifice. We ask them not to despair as 2019 is not too far. The day will come when collective bargaining rights are restored and we have a judicial system with integrity that is manned by men and women appointed on merit through a transparent process. Not a legal system where people are elevated to the highest court to go and protect the system by being Government gate-keepers.
The complete disregard of collective labour rights, undermining the rule of law and rampant corruption seemed to have taken hold in the country when President Khama came into power in 2008. It has however become a culture that pervades all the country’s institution as persons have been strategically placed in all important institutions, whose loyalty is not to the country and its constitution but to the President.
Finally, we wish to express our disappointment at our comrades at the Botswana Congress Party for supporting the disregard of collective bargaining rights of public servants by condoning Government’s stance and sympathizing with positions taken by the Botswana Public Employees’ Union on the PSBC. It came as no surprise to BOFEPUSU when BCP’s finest legal brains were deployed to assist BOPEU with its collusion with Government to frustrate collective bargaining rights. There can be no neutrality when Government colludes with evil forces to undermine the bargaining rights of workers.