Teachers win

ISAIAH MOREWAGAE
Staff Writer | Friday August 10, 2012 00:00

 

Government yesterday suffered yet another defeat in the aftermath of last year's public sector strike when High Court Judge Key Dingake again ruled in favour of unionists who had taken government to court challenging its decision to declare some services essential. Justice Dingake declared Section 49 of Trade Disputes Act, which government relied on for its unpopular decision, unconstitutional and nullified the listing of teachers, among others, as essential service workers.

In the aftermath of last year's industrial action by public servants, the then Minister of Labour and Home Affairs, Peter Siele, introduced Veterinary services, diamond cutting, sorting and selling services, as well as teaching as essential services.  Siele reasoned that government was concerned that because some of the services affected by his decision were the backbone of the economy, any prolonged industrial action involving them would have calamitous consequences.

With regard to teaching, the minister said, government was concerned about the right of children to education.  The unions disagreed and went to challenge powers conferred on Siele by Section 49 of the Trade Dispute Act (TDA), arguing that the provision was in dispute with Section 86 of the Constitution.In his judgement, Dingake said in terms of Section 86, read with 87, only government was vested with the power to pass laws in the absence of express or implied power in the Constitution to delegate to another authority.

He added that to interpret Section 86 and 87 in a manner contended by government was 'pregnant' with danger.'In the absence of a clear and comprehensive guidance, it may in the course of time lead to the gradual transfer of legislative powers to the Executive through a similar approach as captured by Section 49 of the TDA,' Dingake said.He emphasised that such a proposition would be absurd in the extreme in that Parliament would then cause the only authority to pass substantive laws following debates and transparent processes.  Dingake added that failure by the legislature to prescribe specific guidelines for the minister in the exercise of his delegated authority strengthened the view that the delegation offended against the Constitution.

He said Siele's purported legislative power offended against the normal process of law-making where a piece of legislation started life as a Bill and went through various stages before it was assented to and signed by the President.'In my view,' Dingake said, 'the great purpose of separation of powers would stand subverted if judgements emanating from court encourage disobedience of the Constitution. 'To do so would be contrary to the rule of law: it would invite contempt for the law and encourage the citizen to become a law unto themselves.'Dingake said it was clear from the facts of the case that the justification proffered by government for delegating substantive legislative power to the minister was weak and did not meet the requirements of the Constitution and the concept of constitutionalism.

'In my mind, the right to strike is a fundamental constitutional right that is entrenched by Section 13 of the Constitution,' he noted. 'It is inconceivable that a court can hold that such a right may be taken away by the minister by way of a statutory instrument without due process of law, acting in terms of Section 49 of TDA.' He emphasised that in the absence of a clear mandate in Section 49, it was unreasonable to assume that Parliament had intended to give the minister unprecedented powers to adversely alter the existing rights of workers.With regard to Botswana's system, Dingake said constitutional supremacy and the fact that the Constitution assigned the power to make laws to Parliament in the most emphatic terms, 'Section 49 of the TDA constitutes an impermissible abdication of Parliament's power to pass laws'.

'Consequently, the said section being in dispute with the constitution, is declared unconstitutional and is set aside,' Dingake concluded.  The unions had also argued that the amendment was in conflict with Section 144 of the Employment Act because the minister had failed to consult the Labour Advisory Board as required. Dingake dismissed Siele's arguments that due to the urgency of the situation, it was not practical to consult.'In it is my considered opinion, the strike action even prolonged, on its own cannot be a basis to subvert the statutory obligation to consult,' said Dingake. He added that strike action was a legitimate tool in collective bargaining between employees and employers.  Dingake emphasised that while natural tension was inevitable and inherent in a strike situation, 'things do get out of control quite often'.

He added that on the basis of facts before court, it could not be said Siele could not have waited for a week or so to effect the consultation decreed by the Act. He noted that a matter was not urgent because 'a strike, let alone a lawful strike, has been suspended and may be resumed'.  Consequently, Justice Dingake said declaring veterinary services, diamond cutting, sorting and selling services and teaching services as essential services was a nullity.  He said on a plain reading of Section 49, it did not authorise the minister to pass a statutory instrument that violates international law or Botswana's international obligations.'In the premises, I hold that the Statutory Instrument being inconsistent with international law is hereby declared invalid and of no force and effect,' he said. Justice Dingake ordered government to pay the costs of the case. Four unions - Botswana Public Employees' Union, Botswana Teachers Union, Botswana Secondary Teachers Union and National Amalgamated Local and Central Government and Parastatal Workers Union - brought the application on behalf of their members.