Final throw of the dice for govt, BOFEPUSU

Isaiah Morewagae | Thursday January 23, 2014 17:13

 

The epic battle that will feature Botswana Federation of Public Sector Unions (BOFEPUSU) and government has been taken outside the normal stipulated time of arguments in court.  The case is expected to last four hours as opposed to the normal two hours, which are always set aside for argument under normal situations. The judgment is expected on February 6.

Government is appealing the judgment of Justice Key Dingake who in 2012 ruled against its classification of teachers, veterinary services and diamond sorters as essential workers.

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).   The union’s lawyers Alec Freund and Mboki Chilisa want the appeal dismissed with costs.

In their heads of argument Freund and Chilisa say that those not engaged in essential services who took part in the strike included government employees 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) 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,' the say.

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.'  On the other hand, the government contends that the reason why the High Court says Section 49 of the TDA is unconstitutional is because the exercise of power by the minister is not properly guided.

'But notwithstanding everything, it says it accepts that delegation that is regulated is proper.

Our submission is that boundaries of delegated power have to be examined in the context of the whole Act and in particular what the legislature itself has listed as essential,' government argues.

They further argued that in Botswana all instruments made by a subordinate lawmaking authority passes through Parliament.

In the premise, the government wants the CoA to set aside the High Court’s order that declared Section 49 of TDA unconstitutional.

They also want BOFEPUSU to pay costs of the appeal and that of the High Court.