Rari survives 'coup'
Innocent Selatlhwa | Tuesday January 31, 2023 06:00
Four members Tshetsana Motsatsing, Namwaka Shamukuni, Carthage Kenosi and Matthews Masole accused Rari of deliberately altering a constitutional clause, in the process fabricating a resolution of a national congress in order to prolong his stay in office.
They wanted Justice Chris Gabanagae at the Gaborone High Court to declare that the alteration of the clause in question was “fraudulent and therefore unlawful”, that the original clause be restored, that the SG position be declared vacant because Rari is holding such office unlawfully and that BOSETU should hold fresh elections for the SG position within 21 days of the order being made.
But Rari, Radikola and BOSETU would then file a case before Justice Michael Motlhabi praying that the summons be struck out. He said the election of a trade union constituted an administrative action, which have to be challenged by a way of judicial review pointing out that since the members’ complaint in respect of the constitution was that it was discovered in 2013 that he had made unauthorised alterations to the constitution and had it registered, both amendments and their registration are administrative acts.
He emphasised that the respondents knew the alleged acts that are said to have been unconstitutional for a period of eight years including at the time of the congress and yet no legal proceedings were instituted to have the amendments set aside or to have his candidature invalidated.
Responding to Rari’s take, the members denied that their action was irregular, submitting that the amendment of the constitution does not constitute administrative action as the administrative action was taken by the government or public bodies and not voluntary associations such as trade unions in the exercise of public power. The members argued that the action was not time barred, as it was not a review, explaining that they are simply seeking compliance with the constitution and regularisation of all conduct, which offends the constitution.
Delivering his ruling, Motlhabi said the court has to make an inquiry on both the source and the nature of the power of the body in question, on whether the exercise of its functions have public law consequences and must therefore be decided within the realm of judicial review. He said the consequences are a critical determining factor on the procedure to adopt between a writ of summons and judicial review. He said the court takes judicial notice of the fact that, formation of trade unions is pursuant to workers’ fundamental rights and freedoms to form and join associations that advance their rights, and protect their interests. “Section 6 of the Trade Unions and Employers’ Organisations Act, requires all trade unions or employers’ organisations formed in Botswana to register with the Registrar of Trade Unions within 28 days of formation.
The Registrar of Trade Unions has a supervisory right over the registered trade unions. This in itself connotes the public interest nature of associations such as BOSETU. ''I therefore hold that the decisions of BOSETU, amount to administrative action and are therefore amenable to judicial review, at least insofar as the trade union acts in the public interest of its members.
It is the view of this court that a wrong procedure was followed, and issuance of the summons was a non-legal act,” He said. In summation, Motlhabi said the summons fails in its entirety. “I therefore make the following orders: the applicants objection succeeds; the writ of summons filed on the 18th November 2021, is hereby struck out as an irregular or improper step or proceeding; First to fourth responds are to pay costs on party/ party scale,” he concluded.