The four teachers who want to knock the Botswana Sectors of Educators Union (BOSETU) Secretary General, Tobokani Rari, off his pedestal are insisting that they face off in court with him. This comes after Rari asked the High Court to set aside the writ of summons served on him by the teachers, who are themselves BOSETU members.
The teachers are Tshetsana Motsatsing, Namwaka Shamukuni, Carthage Kenosi and Matthews Masole. Masole is a lecturer at the Tlokweng College of Education, Motsatsing teaches at Gantsi Senior Secondary School, Shamukuni at Molefi Senior Secondary School in Mochudi and Kenosi at Naledi Senior Secondary School in Gaborone. The quartet alleges that Rari “deliberately” altered a constitutional clause, in the process fabricating a resolution of a national congress (the highest decision-making body in the Union) in order to prolong his stay in office. The alleged fabrication happened in 2014.
The quartet wants Justice Chris Gabanagae at the Gaborone High Court to declare that the alteration of the clause in question was “fraudulent and therefore unlawful”, that the original clause be restored, that the SG position be declared vacant because Rari is holding such office unlawfully and that BOSETU should hold fresh elections for the SG position within 21 days of the order being made.
In his defence, Rari made a counter-application to have the matter thrown out, arguing that the quartet made its application outside the legally permissible time period of four months. He also raised another issue about the quartet invoking the wrong legal prescription.
“The amendment of a constitution of a trade union constitutes administrative action, which ought to be challenged by way of review proceedings,” says Rari in his affidavit. “The election of officers of a trade union also constitutes administrative action, which ought to be challenged by way of judicial review.”
He goes farther to state that the quartet knew of his allegedly unconstitutional acts for eight years “and yet no legal proceedings were instituted to have the amendments set aside or to have my candidature invalided.” He makes the same argument with regard to the invalidation of his April 2021 election as Secretary General, noting that the quartet’s application came seven months after his election.
In an answering affidavit deposed to by Motsatsing, the quartet argue that amendment of the constitution doesn’t constitute administrative action, which “is taken by government or public bodies and not voluntary associations such as trade unions in the exercise of public power.” On the basis of the latter, “this action is not time-barred as this action is not a review.” She further argues that “the raising of this technicality is a deliberate ploy to run away from the real issues, that is, whether or not the deponent should still be occupying the position of Secretary General and for the deponent to clarify how the unconstitutional and illegal amendment occurred.”
The issue goes back to the 2008 when the BOSETU national congress resolved that the term of office for the position of Secretary General should be restricted to two years. As a result of the latter, a new constitution that reflected the latter constitutional amendment, was registered with the Registrar of Trade Unions in 2011 by the member who held the SG position at the time. The clause in question, numbered as Article 17.3.11, reads in full: “That, if and when the Secretary General is seconded to the Union on a permanent basis, s/he may only serve two terms of office consecutively.”
BOSETU would hold another national congress in 2013, a special one, which had been called for the purpose of discussing the amendments that had already been made. At this point, Rari was the SG.
“During Congress, it was established that as the Secretary General was presenting, Article 17.3.11 had been amended or altered despite the fact that it was not part of the proposed amendments … The clause restricting the Secretary General’s term of office was replaced with a clause which provided for dissemination of minutes,” one part of the “Particulars of Claim” by the quartet reads.
The replacement clause, the one the quartet is challenging and one still in force, reads as follows: “Promptly disseminate minutes of meetings to the Union and to the National Executive Committee.”
The “Particulars of Claim” go on to state that this anomaly was brought to Rari’s attention and that the Congress, which is the highest decision-making body in the Union, instructed him to restore the original clause it had earlier adopted before submitting a copy of the amendments to the Registrar of Trade Unions. The four member-applicants are keen to stress that the proposed amendments did not involve any amendment to Clause 17.3.11: “As altered, Article 17.3.11 is unlawful and null and void, as it violates constitutional amendment processes.”
Rari is in his 10th year as SG and having been re-elected last year, will serve until 2024. This makes him the longest-serving BOSETU SG yet. On the basis of the intrigue they detail, the applicants assert that Rari’s tenure as SG “violates the original Article 17.3.11 of the constitution and is therefore unlawful.” They go farther to state that in an attempt to have this matter resolved, they wrote a letter to BOSETU’s president, Winston Radikolo “petitioning him to take action in respect of among other issues, the unauthorised amendment.”
The petition in question is a year-old letter which is itself not annexed to the court papers but Radikolo’s response letter is. In his response, Radikolo denies that there was ever any “unilateral amendment” of the BOSETU constitution.
“Indeed in the previous constitution of BOSETU, there existed term limits in the office of the Secretary General, but the draft that was adopted by Congress and subsequently registered did not contain any term limits. It is in accordance with that Constitution that the current Secretary General currently holds office and nothing about his occupation or holding of office is unlawful,” his January 20, 2021 letter reads.
In their “Particulars of Claim”, the applicants note that Radikolo didn’t provide any evidence to back up his claim that the draft that Congress adopted didn’t specify term limits.
