If its freedom you want, then you should not be a teacher.
Gagged, oppressed and denied Constitutional rights ÔÇô this is the picture of teachers in government schools as painted by outspoken human rights lawyer and Chairman of the Law Society of Botswana, Duma Boko.
Boko who was the guest speaker at the recent Botswana Secondary Teachers Union delegates’ conference accused government of being the worst violator of human rights and he rallied teachers to challenge the laws that govern their service “because they are unjust and oppressive.”
He labeled the Teaching Service Act as oppressive and outdated because it confers excessive rights on government as the employer at the detriment of the employees.
Boko, who is also BOSETU’s legal advisor, said ”rights are not conferred by government and our leaders should not delude themselves into thinking that they can give or take rights. Their main concern should be in the upholding and protection of such rights”.
He explained that section 3-13 of Botswana’s Constitution not only enumerates such rights but also provides for their protection.
”The constitution recites and restates such rights and the enumeration of these rights is not exhaustive such that the law is sometimes forced to venture outside the constitution to feed on the supplement of such rights,” he said.
Boko highlighted the concepts of freedom of association, freedom of expression and the right to a fair trial as the core issues of his presentation particularly with relevance to the teaching profession.
He cited section 21 Part V of the Teaching Service Act which states that “no teacher shall, without the permission of the director, edit or manage a newspaper or publish in any manner anything which may be reasonably regarded as of a political or administrative nature.”
He condemned such curtailment of teachers’ freedom of expression as unacceptable because, in human rights law, there are fundamental precepts that influence the approach to the law. He explained that laws are interdependent and over-linked such that one cannot deal with one law and ignore the other.
”Therefore, prohibition of one to dabble into issues that are deemed political or administrative is unacceptable because it allows the sponsor, government, to limit what teachers can say or do,” said Boko.
The Law Society President went on to explain that there is a curtain between what is just and what is legal adding that custodians of the law are burdened with the responsibility of establishing what is lawful and what is just. But the tragedy in Botswana’s legal system, he said, is that often those who are mandated with the responsibility of dispensing justice tend to concentrate on what the law dictates and ignore what is just. The tendency to dispense judgments based on the fact that “it is what the law says” but with total disregard to whether that law violates against one’s human rights is unjust. And it follows that an unjust law is no law.
“Therefore a law that is unjust in its outcomes and impact on our human rights does not have a claim to society’s obedience and loyalty because it is detrimental to our welfare. At the same time, government, the repository and custodian of human rights, does not deserve our loyalty and respect if it fails to uphold our rights,” said Boko.
The implication of this oppressive act is that teachers who everyday face hardships in the workplace because of poor working conditions and have to deal with students who are suffering because of government’s ineptitude are barred from taking action or commenting on such situations because government deems them to be political.
Effectively, the act gives government the powers to regulate what teachers can say and this is a direct contravention of their freedom of speech, which is enshrined in the constitution of Botswana. Boko went on to explain that speech is, by its nature, procreative and emotive and the attempt by the employer to suppress these elements is a blatant effort to silence the masses and convert them into praise poets and cheerleaders of those in authority.
”The challenge that the labour movement faces in Botswana is for them not to falter in their condemnation of human rights violations even though they will be labeled as insolent and disobedient,” he said.
Boko also said that the current dispensation where BOSETU as a labour movement is expected to negotiate as an equal partner with government, who is both the employer and the custodian of human rights, creates difficulties because government tends to play a paternalistic role because of the excessive laws that are vested on it. “Engagement at this level of negotiations becomes impossible as there is no equality,” he said.
The unionization of Botswana’s labour movement was hailed as a milestone because, in the past, the curtain dressing efforts by government to invite the labour movement to consult on issues concerning their welfare counted to naught as most of the time government chose to ignore their input.
Unionization presently obliges the employer through the Trade Union Act and other labour laws to negotiate with the unions in good faith.
He said that it is imperative for both parties to create organs that will state very clearly which areas need to be part of negotiations such that the employer will be bound to take action after negotiation, failing which the labour movement will be at liberty to seek external audience. But in most cases the actions of the employer suggest that they are not alive to the fact that where a matter is a subject of negotiation the employer is not at liberty to go ahead and implement what they please without the input of the employee.
As an example of the unfairness and injustice inherent in government’s negotiations with the labour movement, Boko cited the divestiture reference committee which drives the privatization process and encompasses all stakeholders. He said that the labour movement, the employer and other stake holders are represented in the committee. But Boko dismisses such representation as a window dressing exercise that is meant to delude the workers, challenging the labour movement to look deeply and assess the implication of such representation. He said that government as a key player is represented by relevant personnel like the attorney general, accountant general and others. But the very same government that is represented by experts (lawyers, accountants and economists) refuses to allow the labour movement to hire qualified personnel to represent them in this forum. Consequently, there arises an uneven playing field because the poor members of the union executive would sit at such committees but make very minimal if any contributions because they are floundering in a sea of ignorance as they would not understand the expert jargon that would be used in the fora.
Boko added that the usual answer that he gets when raising such complaints is “this is what the law says”, an answer which is regularly blurted out with little regard to the principle of fairness. His response to such utterances is an exasperated”screw the law!”
Proceeding to elaborate on the Teaching Service Act’s blatant disregard for the law, Boko cited section 22 (1), (2), (3) and (4) of the act which vests excessive powers on the director of the teaching service management. Effectively, the act states that when a teacher stands accused of an offence, it is the sole discretion of the director to decide whether such a teacher should be suspended and under which conditions. Boko’s contention is that even though criminal charges may be preferred on a teacher, fundamental rules of justice dictate that the accused must be given a chance to defend himself. But that is not what the act states as it gives the director the powers to suspend the teacher, worse still, at half salary, without any hearing whatsoever and even before the court of law has found that teacher guilty.
This, he said, is a direct contravention of section 10 of Botswana’s constitution which dictates that the law shall not derogate from fundamental human rights and it follows, therefore, that the presumption of innocence until proven guilty remains intact. But the teaching service act violates this presumption as it gives the director the powers to punish one even before he is proven guilty. Boko called for government to review and cede certain sections that govern the employment of the civil service to the negotiation table as they represent a clear violation of human rights. He urged the leadership to avoid the habitual tendency of power mongering by refusing to cede some of their powers, calling for a humble and honest assessment of the situation.
Unfortunately, he said, government has a tendency to nurture an adversarial and confrontational relationship with the labour movement, labeling them renegades, and using the immense resources at their disposal to penetrate the unions and sow seeds of discord as witnessed in the recent splintering of Botswana’s labour movement. What makes me even sadder, he said, is that after assuming positions of power and authority, former comrades who were in the past champions in the struggle for the upliftment of human rights have now developed swollen bellies and turned into the worst violators of human rights.
”But this can only be countered when the labour movement vigilantly defends the principle of solidarity. We are comrades and comrades do not sell each other out,” said the lawyer amid shouts if “Viva!” and “Solidarity!”