The letter Dow did not see
Oarabile Mosikare | Friday April 8, 2016 16:06
In a letter written to minister Unity Dow late last year, which she says she never saw, the teachers’ unions warned that proceeding without consultation could prove counter-productive even to the Ian Khama administration.
In the letter to Dow, dated November 2, 2015 BTU and BOSETU informed her that she had not consulted them as interested parties.
In the letter, BTU and BOSETU secretary generals, Ibo Kenosi and Tobokani Rari, raised concerns as to the validity and consequences of the Bill to the teaching profession in Botswana.
BTU and BOSETU argue tha government’s oversight in the trade unions’ input in the Botswana Examinations Council Amendment Bill may result in the legislation being declared invalid by the courts.
Dow withdrew the amendment Bill, which sought to subject teachers to less favourable conditions of service on Monday.
In the November letter, BOSETU and BTU had opined that section 5A (2) promotes forced labour “as it takes away the right of unions to negotiate better terms and conditions of service for their members, thereby contravening Sections 70 and 72 of the Employment Act of Botswana. The spirit and purpose of the BEC Bill is a veiled attempt seeking to overturn the effect of the court decision granted by Judge Phumaphi in favour of the teachers in the decision of BOSETU vs Makhandlela mentioned hereinafter”.
BOSETU and BTU say the failure to consult the teachers through trade unions was a fundamental omission, which may result in the legislation, been declared invalid by the courts.
Kenosi and Rari reminded Dow that on September 17, 2008, the then Director of Teaching Service Management, Opelo Makhandlela, issued directive No. 3 of 2008, instructing members of BOSETU and BTU to execute the mandate of BEC. That was when Dow was a High Court judge. “BOSETU challenged the validity of the directive of Makhandlela in court and were successful. Phumaphi J set aside the directive as null and void on the 28th September 2009 and the Attorney General never appealed that judgment which still stands as the law,” wrote the unionists.
Now BOSETU and BTU are saying failure to consult the teachers through trade unions will be a fundamental omission, which may result in the legislation, been declared invalid by the courts. “It is BOSETU and BTU’s opinion that section 5A (2) promotes forced labour as it takes away the right of unions to negotiate better terms and conditions of service for their members, thereby contravening Sections 70 and 72 of the Employment Act of Botswana. The spirit and purpose of the BEC Bill is a veiled attempt seeking to overturn the effect of the court decision granted by Phumaphi J in favour of the teachers in the decision of BOSETU vs Makhandlela mentioned hereinafter.”
The trade unions say while the legislation may end a dispute it cannot force cooperation. It cannot force creative and innovative thinking to find long-term solutions to problems and it cannot force the necessary dialogue to create productive, flexible and adaptable workplaces. The unionists reminded the former judge that teachers are hired by Directorate of Public Service Management (DPSM) through the Public Service Act, No. 30 of 2008. BEC Act or the Bill governs a parastatal organisation with its own mandate and staff. The BEC Council is given a mandate to manage and conduct external examinations. BEC is a body corporate with perpetual succession and capable of suing and being sued in its own name.
“It is BOSETU and BTU’s considered opinion therefore that the relationship between teachers and BEC has been that of a contract of service not contract of employment. In the contract of service relationship, BEC does not have direct control over teachers.”
They posited that invigilations of external examinations and assessment of coursework constitute the core mandate of BEC. The teachers’ mandate is to teach learners and mark internal examinations. “Anything that constitutes the mandate of BEC can be done by teachers through collective bargaining agreements as has been the case. It is BOSETU and BTU’s position that the removal of a matter that was a subject of negotiated determination to statutory determination begs the motive of such a bill to be scrutinised.”
BOSETU and BTU’s opinion is that the amendments are intended to avoid remunerating teachers for supervising, assessment and marking external examinations. The ulterior motive is to use teachers for free as cheap labour. Rari and Kenosi said the ministry‘s intention is to overburden teachers with work that does not form part of their contract of employment. “The ministry is not saying the motive was to avoid labour unrest because the next question will be, who is the source of labour unrest especially during exam period. The jury will point to BEC as a source of labour unrest due to failure to pay or remunerate teachers for the work done by them,” they posited.
BOSETU and BTU opine that such a law would be declared unconstitutional by courts of law. In terms of Section 86 of the Constitution, Parliament makes laws for the peace, good order and good governance of Botswana not to avoid negotiated determination at a collective bargaining table, they argued. “The Court of Appeal has held that laws made for any other or ulterior purpose would be unconstitutional. Therefore, BOSETU and BTU strongly believe that Section 5A(2) of the Bill is unconstitutional on the basis of the foregoing grounds.”
The unions said the BEC Bill No. 16 of 2015, especially, section 5 (A) (2) produces obnoxious effects. Firstly, it gives the employer the power to coerce a teacher to carry out the mandate of BEC involuntarily. Secondly it does not entertain collective bargaining on issues of mutual interest. Thirdly, it renders the right to associate freely for purposes of collective bargaining non- existent.