BOFEPUSU 3 - Govt 0
Oarabile Mosikare | Wednesday April 23, 2014 11:53
Judge President Ian Kirby’s judgment has reversed the decision by government to declare the professions of teachers, veterinary services, diamond sorters and transport services as essential service. The sectors were declared essential by the decision of the Minister of Labour and Home Affairs Edwin Batshu in the aftermath of the 2011 industrial action. The appeal concerns the extent to which, if at all, Parliament has the power to delegate its constitutionally conferred law-making function to third parties.
In it Batshu and the Attorney General sought to reverse Dingake’s judgment in which he declared Section 49 of the Trade Dispute Act (TDA) incompatible with the Constitution and thus invalid. Dingake’s judgment had also invalidated Statutory Instrument (SI) No. 57 of 2011, made under Section 49.
In the judgment Kirby said in the majority of cases the legislative power delegated by Parliament in the interests of good government to ministers or to other administrators or bodies is the power to amend Schedules.
“It is only in comparatively rare cases that the power to amend substantive sections of an Act is so delegated - and such cases will, where a challenge is mounted, require particularly close scrutiny by the court as to their constitutionality,” said Kirby.
Kirby said in his judgment, the decision as to which services or categories of services should be classified as essential services is an important policy matter properly to be debated in Parliament and to be subjected to public scrutiny. “This is more so because, in the case of the teachers and other public servants represented by the respondents in this case, the right to strike was only fairly recently conferred upon them by an Act of Parliament, after full debate.”
To allow it therefore to be arbitrarily cancelled by a member of the Executive would not, in my view, pass constitutional muster, Kirby said. He said Dingake was right to declare Section 49 of the TDA unconstitutional and to set aside SI 57 which was promulgated on the strength of Section 49. In the judgment Kirby cautioned that advisory opinions of a foreign panel of experts should not be taken as binding on Ministers of State of Botswana in the executive of their statutory duties. He added that these advisory opinions do not necessarily create any legitimate expectation that they will be unquestioningly followed.
In conclusion he dismissed the appeal with costs. Justices Lord Alistair Abernethy, Isaac Lesetedi, Monametsi Gaongwalelwe and Lord Arthur Hamilton agreed with Kirby.
The respondents were represented by advocate Alec Freund, Senior Counsel, and attorneys Mboki Chilisa and Gosego Lekgowe while Morulaganyi Chamme and Lawyer Thamuka appeared for the appellants. The respondents were 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).