Wednesday, October 21, 2020

Botswana doesn’t have occupational health and safety law

As the fallout from last month’s train accident continues to carpet the headquarters of Botswana Railways and those of the Ministry of Transport and Communications, some of it is now over-spilling onto the terrain of other ministries and departments.

Sunday Standard has established that some 54 years after independence, Botswana still doesn’t have an occupational health and safety law. As a result, some inspection work is carried out with the guidance of South African laws.

This revelation comes as we continue to look into the state of safety management at BR. A passenger train derailed on December 19, 2019 near Mahalapye and it has become clear that safety standards at the national and only rail transport company in Botswana leave a lot to be desired.

Having earlier made concerted effort to get both the BR Management and the Ministry to respond to its concerns about health and safety, the Botswana Transport and General Workers Union (BTGWU) thought the Department of Occupational Health and Safety in the Ministry of Employment, Labour Productivity and Skills Development might come to the rescue. Upon such conviction, the Union wrote to the Department in June 2018 requesting an urgent health and safety inspection.

“BGTWU is seriously concerned with the ever-deteriorating standard of safety and occupational health in the organisation,” wrote the Union’s General Secretary, Thapelo Molefe. “BGTWU cannot wait any longer, hence the request for an urgent inspection.”

The Union wanted the inspection to cover seven stations: Lobatse, Gaborone, Mahalapye, Palapye, Serule, Francistown and Sua Pan. There was also request for the Department to conduct safety awareness for BR employees.

The inspection never happened and the explanation from BTGWU’s Executive Secretary, Tsenang Nfila, is that while a Department official had earlier indicated both willingness and readiness to carry out such inspection during a telephone exchange, he later demurred. At a meeting between the two parties, the Department – which was led by an unnamed Principal Health and Safety Inspector II officer – indicated that, as spelled out in the Factories Act, it didn’t have powers to carry out a comprehensive inspection of BR property. Nfila recalls the Inspector as saying that the Department’s jurisdiction was limited to inspection of the engineering workshop in Mahalapye.

Following this meeting and in apparent resignation to its fate, the Union shot off another letter in which Molefe requests the Director of the Department of Occupational Health and Safety to “stay the requested inspection until further notice.”

At first, this might look like a case of government officials getting cold feet at the moment of truth but is actually not. Sunday Standard’s investigations have revealed that indeed the Department of Occupational Health and Safety has no authority to inspect BR’s variegated stock of assets, which ranges from office buildings to engineering workshops to a railway line with bridges, culverts and crossings that runs from Ramokgwebana to Ramatlabama. It is not unusual for a government department to have limited jurisdiction but what is unusual in this case is that there is not one single body that maintains regulatory oversight over BR with regard to safety standards. While the Department of Occupational Health and Safety can inspect the engineering workshop in Mahalapye for statutory compliance in terms of the Factories Act, it can’t go farther and inspect whether the structural integrity of the railway line itself (BR’s backbone) has not been compromised.

Sunday Standard learns from industry sources that the only other safety law in Botswana is the Mines, Quarries, Works and Machinery Act – which is enforced by the Department of Mines in the Ministry of Mineral Resources, Green Technology and Energy Security. Like the Factories Act, this piece of legislation was also made in 1973, during the presidency of Sir Seretse Khama. A source with intimate knowledge of the Mines, Quarries, Works and Machinery Act says that it has created complications because “it doesn’t cover a lot of things.” Top of the list is its incompatibility with open-cast mining operations which are standard fare at all Botswana diamond mines – like the Jwaneng mine which is owned by the Debswana Diamond Company. It will give some pause that with economic diversification still floundering, diamond-dependent Botswana has yet to develop safety laws to safeguard operations at its cash cows.

An industry source’s explanation for this yawning statutory gap is that the Mines, Quarries, Works and Machinery Act was developed for underground mining operations in Selebi Phikwe where what was then the Bamangwato Concessions Limited (now just a non-abbreviated BCL) was mining copper and nickel and Morupule where Debswana was mining coal. However, there was also an open-pit mining operation in Orapa, which had started in 1971. A similar operation would be started in Jwaneng in 1982.

In the absence of a home-grown occupational health and safety law, Botswana mines use South Africa’s Mine Health and Safety Act. That De Beers is a South African company which wields a lot of power over Botswana’s political leaders might lead some to the most obvious conclusion. If De Beers wanted the government to develop domestic mine safety laws, that would long have happened but the company was evidently more comfortable using ones from its home country.

In other instances, professionals in this field use health and safety standards developed by the International Labour Organisation. Apparently, there is a long-running but apparently unsuccessful campaign by these same professionals to have Botswana develop its own occupational health and safety law. Such law would, unlike the Factories Act, cover all premises and would have made easy for the Department of Occupational Health and Safety to grant BTGWU’s wish and inspect BR premises.

With the absence of such law, organisations like BR, Botswana Power Corporation, Water Utilities Corporation and Botswana Telecommunications Corporation have developed their own in-house safety guidelines. Private sector companies also have their own dissimilar safety guidelines. The result is that there are now as many standards as there are organisations that place a high premium on health and safety when the ideal would be for the country adopt similar standards.

Botswana’s power-sharing arrangement literally puts MPs a kilometre away from where laws are actually made – the Attorney General Chambers. The broad outlines for legislation originates in a ministry and the actual drafting of a bill is done by the Draughting Division of the Attorney General Chambers. The bill goes to cabinet which then forwards it to parliament for “rubberstamping” – as some MPs themselves have said. As described, the state of affairs with regard to the absence of the safety law implicates the Ministry of Mineral Resources, Green Technology and Energy Security as well as the Ministry of Employment, Labour Productivity and Skills Development. Whatever belief MPs may have about just rubberstamping bills, Parliament is itself as culpable because MPs are supposed to know what is happening in the country. Some of them have actually worked in mines and factories where they used South African laws. To our knowledge, not once has any MP brought this statutory gap to the attention of parliament.

From what Sunday Standard learns, there has been effort to close this gap at administrative level. In the telling of a source, a draft document for an occupational health and safety policy was circulated within the civil service “some time back.” However, all this appears to have been in vain as there was never any follow-up action.

For a perpetually loss-making commercial enterprise like BR, there is a context in which this statutory gap comes with additional financial cost. In 1998, a BR Safety Manager derailed a goods train, causing monetary loss in the tens of millions of pula. Oddly, no disciplinary action was taken against him. A safety expert says that even if such action had been taken, the charge proferred would have lacked standard occupational safety elements that would necessarily be included in countries like South Africa that have occupational health and safety law.

“In one respect, the absence of occupational safety law in Botswana reduces the proportionality of punishment to the offense committed,” the expert adds.

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