When some sealed containers of motor oil were discovered in the skip of a Maun vehicle dealership, management announced that it would be engaging the services of a polygrapher to sniff out the culprit. While this movie-like scenario sounds like a novelty, subjecting employees to a lie detector test has become a norm that most in the country are not aware of. Amongst the biggest consumers of this service are diamond sorting companies at the Diamond Park in Gaborone. Employees of these companies literally handle rough diamonds worth millions of pula.
The legality or otherwise of using a lie detector test is a gray area because there is no law that permits or disallows their use in the workplace. However, on account of the power imbalance in the workplace, some employers are exploiting this loophole to their advantage.
The Maun case reveals another dimension – that employees can refuse to be tested. Employees at the dealership are members of the Botswana Transport and General Workers Union. Upon learning of management’s plans, the employees notified the union’s secretariat in Mahalapye. Resultantly, BTGWU’s Executive Secretary, Tsenang Nfila, fired off an email to the company’s management telling it that “we have advised the members not to consent to take the polygraph test.”
In a follow-up letter to the company, Nfila questioned the legality of using this device. He points out that the company’s own Disciplinary Policy and Procedure and the labour statute do not provide for polygraph testing.
“This is why it has never been used by the Company in determining the verdict against any employee suspected of theft/unauthorised removal of property of the company. When an incident of this nature occurs, investigations are conducted, and facts are established – it is all in the Policy – and there is absolutely no need to resort to ungazetted devices,” Nfila writes.
Nfila’s point about consent and management’s inability to get its way reveals something very important – that employees are not entirely helpless. While Botswana has not established standards for use of polygraph testing, South Africa (where polygraph test results have been accepted as evidence in Commission for Conciliation, Mediation and Arbitration and labour courts) has. In terms of South African standards, an employee has to voluntarily agree to undergo the polygraph test. The results of a polygraph test (which cannot be used as proof of guilt) don’t guarantee that employers will always get returns on their investment. Resultantly, the polygrapher needs to have a backup team of forensic investigators to gather evidence (where necessary) following a polygraph result and confession. It is a requirement in South Africa that a polygrapher must be a certified member of a polygraph association and be accredited by the American Polygraph Association.
The reason why results of a polygraph test cannot be used as proof of guilt is that it can be and has been easily beaten by those who know how. The polygraph measures a range of physical changes such as pulse and breathing as well as blood-pressure. However, some criminals (who naturally have lower anxiety levels) have been able to trick the device because their pulse, breathing and blood-pressure remained normal under interrogation. Polygraphy also has no grounding in science because its techniques were developed not by scientists but interrogators. The polygraph test was developed by August Vollmer, a United States police officer. His real aim was to make police officers more law-abiding by not beating confessions out of suspects. It is telling that the police still beat confessions out of suspects.