DCEC wins appeal against employees� union
Goitsemodimo Kaelo | Thursday August 25, 2016 15:16
Section 5C of the Corruption and Economic Crime (CEC) Act of 2013 prohibits officers of the DCEC from becoming members of trade unions or any body associated to a trade union.
In April 2015, High Court judge, Ranier Busang (now suspended) had struck down the section after an application brought by the National Amalgamated Local and Central Government and Parastatal Workers Union (NALCGPWU) challenging its constitutionality. NALCGPWU argued that the section contravenes the constitution, which guarantees freedom of association.
The DCEC filed an appeal and on Wednesday, Court of Appeal Judge President, Ian Kirby and a panel of four other justices, ruled in favour of the graft-busting agency.
Kirby said the proviso to section 5C envisages the creation of a representative association by regulations. He said that the regulatory section 47 is sufficiently wide to accommodate this and the drafting of those regulations was in progress when it was first suspended and then halted by this case.
He stated that each of the three reasons relied upon by Busang for finding that Section 5C is unconstitutional cannot be sustained.
“It does not necessarily, as he found, have a blanket application to all staff members of the DCEC thus possibly rendering it overbroad. As things stand, it applies only to officers and not to support staff of the DCEC. The full extent of its reach falls to be determined by regulations yet to be drafted and brought into force,” he said.
The CoA also noted that it is the CEC Act enacted by Parliament that imposes a statutory prohibition on officers joining trade unions and not the DCEC. Kirby said had the employer been the one prohibiting the employees from unionising, then this could have been found wrong under the Trade Union and Employers Organisation Act.
Kirby said that the way was now open for the Attorney General or the President to proceed with drafting and promulgation of the regulations to establish a DCEC Staff Association within 12 months from the making of the order failing which officers would be at liberty to move to court to strike down section 5C. “In the meantime the interests of the DCEC officers will continue to be protected by the Public Service Bargaining Council and by the exercise of their rights as public officers under the Public Service Act,” Kirby said.