On 24th March 2021, the Permanent Secretary to the President Rre Elias Magosi issued a directive marked ‘Secret’ with respect to ‘Flexible Working Arrangement In Response to Covid-19.’ Two topics namely ‘Working From Home’ and ‘Leave During Easter Holidays’ were addressed in that directive. My interest is chiefly on the latter topic as will be articulated in the body of this conversation. Botswana Federation of Public, Private and Parastatal Sector Union (BOFEPUSU) and Botswana Federation of Trade Unions (BFTU) are the two federations whose affiliates are trade unions representing public, private and parastatal sector workers respectively. It is in this respect that I call upon the two federations to challenge the PSP’s directive. While the PSP is the head of the public service and therefore empowered to give such directives, he overreaches somewhat in my view by directing that ‘….All public officers will remain at their duty stations during this period. The same should be communicated to all parastatals under your Ministries to do likewise.’
Are employees of parastatal entities public officers in the true spirit and definition as contemplated in the Public Service Act? Is the PSP empowered by any legislation to instruct and direct parastatals to obey his instructions like in this instance yet they are not under his authority? I believe these questions are better placed to be answered by competent persons in the law fraternity. It doesn’t however suggest poor souls like myself cannot comment on them.
The authority of the PSP is clearly stated amongst others in the Public Service Act. Section 8 (1) of the Act provides that ‘The Permanent Secretary to the President shall be the head of the public service and shall, subject to the Constitution and this Act, be responsible for the administration of the public service.’ Section 8 (2) provides that ‘The Permanent Secretary to the President may make rules and regulations or give instructions for managing the conduct of the public service’ while Section 8 (3) provides that ‘Any rules and regulations made, or instruction given, in terms of subsection (2) shall not be inconsistent with the provisions of this Act and shall be complied with by all public officers.’ On the basis of the foregoing, the PSP has duly acted and exercised his authority over the public service in conformity with the law when issuing the directive in question. What could be questioned is what prompted the instruction and whether they it is enforceable.
On the overall, it is fair to suggest that Covid-19 pandemic and what it has brought to our shores may have prompted the directive. Covid-19 numbers in terms of infections and fatalities have exponentially increased since the second State of Public Emergency was extended back in September 2020. The Presidential Covid-19 Task Force has confirmed on different occasions that the increase resulted in the heavy human traffic during the long weekends that preceded and followed such long weekends. This on the point that the Covid-19 virus is transmitted from one point to the other by such heavy human traffic. Now given the fact that we are already in the Easter frenzy, the PSP is indirectly stopping public officers from travelling during the Easter long weekend in a bid to avoid the deleterious consequences of the past long weekends where such traffic was not stopped. Public officials are simply under inter zonal lockdown one could argue. At the time the directive was issued, it was not known (and it wasn’t at the time of writing) if the rest of the country will be under inter zonal lockdown.
The directive in so far as it relates to public officers remaining at the duty stations is all but wishful thinking particularly those who will not be on stand-by. This is because not all of them will either be on Covid-19 related duty or stand-by unless some mechanism has been put in place for them to indicate their presence at such duty stations. In short, the ‘remain at your duty station’ instruction is simply unenforceable unless again there is complete lockdown on everybody.
Public officers should appreciate the urgent need of keeping Covid-19 numbers down by whatever means and strategies as this is in the overall public good. But public officers should firstly feel somewhat discriminated against in the context that when a decision is taken by the PSP to restrict their movement during the Easter weekend, it could suggest fairly or unfairly that they are the only ones who are responsible for virus transmission when members of society who themselves are capable of transmitting the virus are not restricted. Secondly, denying them to take their annual leave could result in a dispute of right. A dispute of right is a labour dispute where the employer arbitrarily decides to withhold an employee’s right as provided for say in a contract of employment. If an employer so arbitrarily decides to withhold an employee’s salary, such employer is enabling a dispute of right to emerge. Thirdly, it is not clear as at the issuance of the directive that BOFEPUSU was consulted by the PSP or the Directorate of Public Service Management on the freezing of leave applications by public officers as their representative. It will be remembered that government has in the recent past taken arbitrary decisions like when she decided to not pay public officers their salary increases late last year as per the two year salary increase signed in 2019. She would later comply with the agreement when some trade unions threatened court action. It is with regard to the foregoing I argue that BOFEPUSU should challenge the PSP’s directive.
BFTU as a federation representing some parastatal employees should also challenge the PSP’s directive to the extent it affects such parastatal employees. This will be on the ground that these employees are not governed by the Public Service Act. State Owned Enterprises as parastatals are also called, have been established by their respective statutory instruments wherein no mention of the PSP as a direct or indirect authority thereat is mentioned. For the PSP to direct that ‘….all parastatals under your Ministries to do likewise’ in so far as application for leave and remaining at duty stations by the employees of these parastatals sounds unlawful and stands to be challenged. I believe there are case laws which pronounce on the position of Permanent Secretaries vis-à-vis their authority over parastatal entities. Unfortunately, I could not source them.
BOFEPUSU and BFTU as recently as about a fortnight ago, signed a Memorandum of Understanding wherein they committed to amongst others, advancing the interests of their members through various strategies and fora. I am surprised (at least at the time of writing) that arising out of the PSP’s directive which in and of itself fundamentally, and in more ways than one, encroaches on their territory, have not issued a joint statement in that regard. They say silence implies consent. It is important to note that the two events occurred immediately after each other. Surely, a statement of some sort should have emerged. Otherwise, it could create an impression and perception that the two federations were fully consulted and agreed with the directive. Only time will tell.
While the PSP’s directive in principle and on one hand appears benevolent in the context of restricting movements by public officers during the Easter weekend in an endeavour to supress Covid-19 numbers, it appears on the other to be unfairly denying public officers their right as expectedly expressed in their contract of employment or as implied. No compelling reasons for the variation of this right are given in the directive. Like alluded to above, denial of this right possibly and probably leads to a dispute of right. Apart from mentioning Covid-19 as the issue giving rise to the directive, the PSP’s directive does mention whether it is borne out of the Rules and Regulations of the State of Public Emergency. As for BFTU, it is incumbent upon it to challenge the lawfulness of the PSP’s directive to the parastatals with respect to whether his authority extends to them. I believe parastatals have board of directors complemented by executive management to independently decide the management and conduct of their organisations and staff.
In the end, Covid-19 pandemic is a problem for us all whether you are a public officer or an employee of a parastatal where all hands should be on the deck. That said, it is important for trade union federations to challenge directives such as this one to ensure that they are made in good faith, enforceable and lawful. Government has shown a propensity to make bad decisions when under pressure like in the Covid-19 era. I am prepared to be persuaded otherwise as always. Judge for Yourself!
As we approach the Easter long weekend with respect to the rising numbers of Covid-19 pandemic, let us all adhere to the health protocols to keep them as low as possible.
