Parliament has right to delegate powers - BOFEPUSU lawyers

Oarabile Mosikare | Friday January 10, 2014 15:56

But the unions affiliated to BOFEPUSU submit that Parliament has no right under the Constitution to delegate to the Executive a power to amend an Act of Parliament itself, as the government did when it enlisted teachers, veterinary services and diamond sorters as essential services in the aftermath of the 2011 industrial action.

These arguments are before the Court of Appeal, where the Minister of Labour and Home Affairs is appealing the judgment of Justice Dr Key Dingake who in 2012 ruled against the government’s classification of the stated professionals as essential workers. The respondents through advocate Alec Freund, Senior Counsel, and Mboki Chilisa are opposing the appeal, praying for dismissal with costs.

The respondents are Botswana Public Employees’ Union (BOPEU), Botswana Teachers’ Union (BTU), Botswana Sectors of Educators Trade Union (BOSETU) and National Amalgamated Local and Central Government and Parastatal Workers’ Union (NALCGPWU).  In their heads of argument Freund and Chilisa say that those not engaged in essential services who took part in the strike included employees employed by the government whose jobs involved the rendering of veterinary, teaching and transport services and/or providing support activities in connection with the listed services.

“Just as Parliament has no power to legislate ,to take away or restrict fundamental rights, save where the Constitution has made an exception, so too Parliament has no power to legislate in a manner that divests itself of the plenary legislative power vested in it by the Constitution.  Even if there is a necessary implication that Parliament has the power to delegate subordinate legislative powers to the Executive, there is no necessary implication that Parliament is authorised to delegate to the Executive the power to amend an Act of Parliament itself,” they argue.

Under the Trade Dispute Act (TDA), as enacted by Parliament, citizens engaged in services not listed in the Schedule adopted by Parliament as part of the TDA had a right to strike.  “Parliament had no constitutional authority to empower the Minister to legislate to divest citizens of that right. Determining which categories of employees should be prohibited from striking is a policy laden judgment which should, in terms of Botswana’s democratic Constitution, be taken by Parliament.”

By purporting to empower the Minister to override its own judgment, Parliament allowed control over legislation to pass to the Executive, effectively abdicating its constitutional legislative responsibility. “Whether the right of workers to strike in a particular industry or service should be removed is a controversial question of legislative policy which must be taken by Parliament and not the Executive.”