Why BLLAHWU fired its president
Oarabile Mosikare | Thursday September 18, 2014 14:39
This aspect is key to the divisions that befell the union leadership, leading to an urgent court application, which Justice Godfrey Nthomiwa is scheduled to hear.
The union took the court route when, following the September 9, 2014 letter firing Kedise on grounds that he was seven months overdue in his subscriptions therefore deemed a non-member, he refused to step down.
It has turned out that Kedise the only member in the BLLAHWU central executive committee who opposed the move to employ Motshegwa. Motshegwa was seconded to the BLLAHWU headquarters in 2011 after he ascended to the post during the Gantsi elective congress. He was also re-elected to the post last year December in Mmadinare.
On August 18, 2014, the Francistown City Council wrote to Motshegwa instructing him to report for duty on August 25. The same day a faction in the central committee offered him employment as secretary general of BLLAHWU, in terms of Article 15.3.6 of the union. This offer of employment was not signed.
Kedise approached BLLAHWU attorney Tshiamo Rantao for interpretation of Article 15.3.6 (D) of the union constitution. Rantao responded to him on August 25 referring him to the August 18 letter from the Francistown Council, instructing Motshegwa to report for duty.
“BLLAHWU’s position, which, we believe, is in line with the position of the law, is that this unilateral decision to end the secondment is invalid because the question of secondment is a negotiable matter between BLLAHWU and the employer. The employer cannot simply terminate the secondment without prior negotiation with BLLAHWU,” wrote Rantao.
He advised that it does not make legal sense to engage in court action with the employer since Article 15.3.6 (D) provides that the secretary general “shall be the most senior employee of BLLAHWU”.
“This means that SG [secretary general] must be based at the office as an employee of BLLAHWU. He cannot, therefore, be an employee of the government. BLLAHWU has no other option but to comply with this mandatory constitution requirement. If it does not, then the Central Executive Committee would be in clear breach of union’s own constitution.”
Rantao also advised that Motshegwa should resign forthwith as an employee of Francistown City Council. Should government insist on the giving of notice, then the union would have to take control of the matter as and when it arises. He also said the central executive committee is empowered to agree the terms and conditions with the SG under Article 12.2.1 of the constitution pending approval by the governing council under Article 12.2.12 or approved by the extraordinary general assembly. This extraordinary general meeting is convened by giving a 21-day notice.
Since Kedise disputed Rantao’s interpretation of the constitution, he approached attorney Phillip Nyamambi for his opinion about the permanent employment of the secretary general. Nyamambi said it is common cause that the secretary general has never as a matter of fact been considered an employee of the union. This conclusion is premised on the fact that no salary negotiations have ever been entered into with the SG nor is there a standing policy concerning the remuneration of the SG.
“Efforts at amending BLLAHWU’s constitution and including a clause that makes the secretary general an employee, bears testimony and are proof that the office of secretary general has never been considered an employment portfolio. There is no basis for treating and considering the office of secretary general any different from the other elective offices of the union such as presidency, vice presidency, and treasurer etc,” wrote Nyamambi.
He also submitted that ordinary grammatical meaning of Article 15.3.6 (D) is that SG ought to be an employee of the union. He added that there is however, room for good argument that the article is misplaced and not in tune with the context of the rest of the constitution. He said since the SG’s functions are in terms of the constitution administrative in nature, the intention of the draftsman was to equate the word ‘employee’ with ‘senior administrative officer’ as opposed to employee as understood in the technical sense.
The attorney said because the office of the secretary general is elective by nature and owes his performance to congress it would be absurd to make him an employee, as the constitution provides no disciplinary chain of command.
“The general practice since the union was formed dictates that it was not the intention of the union that its secretary generals be employees of the union as it has never happened.”
He said in terms of Article 12.2.12 the central executive committee has the power to recommend to the governing council the conditions of employment and creation of positions of employment within the union. “It is our considered opinion that at the end of the day, if proper procedures are followed it is quite conceivable that a proper employment of the secretary general may be done without amendment of the constitution,” Nyamambi advised.