Lawyers advice against Dow�s bill
Oarabile Mosikare | Friday April 8, 2016 16:02
Last year Botswana Sectors for Educators Trade Union (BOSETU) and Botswana Teachers’ Union (BTU) engaged Sefelani Thapelo and Mboki Chilisa to advise on the draft Botswana Examinations Council Amendment Bill of 2015. The duo advised that the purpose of the amendment is to take away the teachers’ ability to negotiate payment for the invigilation work, and to compel them to do the same without any additional payment.
The invigilation battle has been around for a while. In 2009, a dispute arose concerning whether the invigilation and supervision of external senior secondary school examinations fell within the scope and ambit of a teacher’s duties. The matter went to court, and in the case of BOSETU vs Opelo Makhandlela case number MAHFT-000013-09, Justice Mpaphi Phumaphi found in favour of the union. Thapelo had scored this important victory for BOSETU before Phumaphi.
The two lawyers are using the judgment as a case in point. According to Chilisa in terms of the Makhadlela judgment, Phumaphi found that the invigilation and supervision of senior secondary school examinations did not fall within the ambit and scope of duties of teachers.
“Justice Phumaphi reasoned that, in terms of the Botswana Examinations Council Act, the Botswana Examinations Council (an autonomous body established by the Act) had been given the responsibility for the conduct of external examinations and it was adequately resourced to carry out this responsibility; and it was therefore inconceivable that it could be expected to assign the responsibility of invigilating examinations to teachers who are employed by government,” said Chilisa.
He said following the Makhandlela judgment, the Ministry of Education and Skills Development has since 2011 engaged teachers in negotiations about the supervision and invigilation of examinations. “The invigilation of examinations has therefore since 2011 been carried out by teachers on a voluntary basis. Government has recently published, in the Government Gazette a draft bill which if passed into law would reverse the effects of the Makhandlela judgment.”
He was of the opinion that the import of the draft bill in respect of teachers and invigilation are clear and unambiguous. This is because the bill says that invigilation of external examinations should by operation of law become part of the duties of a teacher and it should be capable of enforcement through the issuing of an instruction.
“The Bill that seeks to amend the Botswana Examinations Council by inter alia making it part of the duties of an employee to supervise external examinations, and empowering the employer to instruct teachers to discharge such duties is undoubtedly a bill relating to employment. It was clearly intended to reverse the outcome of the Makhandlela case.”
He noted that because the bill relates to employment the Minister is duty bound to consult the Labour Advisory Board (LAB) in respect of same. Consultation outside the LAB does not satisfy the requirement in Section 144. “The failure to consult with the LAB would render any introduction of the BEC Amendment Bill into Parliament unlawful. The resulting Act of Parliament would likewise be liable for challenge on the basis that due process was not followed in promulgating it.”
For his part Thapelo said the draft bill gives the employers of teachers the authority and the right to direct teachers to invigilate examinations and assess coursework. This new provision in the bill creates some problems, as it directly circumvents, and removes all benefit gained by teachers in the 2009 Phumaphi judgment.
“In the litigation referred to above, the High Court accepted argument that the invigilation of external examinations and assessment of coursework for the purposes of grading a candidate for a particular subject is not part of the duties of a teacher. Those functions and duties do not, in other words, form part of the contractual duties, and the contractual scope of the duties, of teachers.
The declaration by the High Court was clear,” said Thapelo.
He also said the total effect of the proposed new provision, however, is to create for employers, powers to direct teachers to do what the court has ruled it is not their contractual duty to do. “The total effect is, in fact, to directly countermand an order of the High Court, which order was not appealed, but, in fact, implemented by the government. Ordinarily the passing of legislation for the specific purpose of counteracting a judicial decision offends against the separation of powers. In as much as Parliament is free to debate bills and legislate without its authority and processes being supervised, criticised, or in any way interfered with by the Judiciary, the Judiciary also deserves respect for its judgments and pronouncements from the legislature.”
Thapelo advised that it is improper to use legislative power to reverse or circumvent judicial decisions. “The Bill clearly intends to, and does in fact reverse the benefits given to clients by the High Court. Furthermore the employer, as discussed above is given the authority to direct teachers to invigilate examinations and assess coursework. The court has settled in its decision, that it is not the duty of teachers to carry out those functions, and that teachers cannot be compelled to do so.”
The Francistown-based lawyer concluded that, “Our advice, therefore, is that whether legitimate grounds of complaint against the proposed bill exist or not there in no right to litigate at the present moment. We would advise, that rather than litigate, clients must lobby Parliamentarians and prepare written submissions to the minister moving the bill expressing their concerns about the bill”.