Friday, December 4, 2020

DIS stands to lose millions due to a single, ill-chosen word in contract

A Mass Media Complex department stands to lose millions of pula due to a defective contract for service that used the wrong (and now very costly) word.In terms of the contract between the Department of Information Services (DIS) and youth freelancers spread out across the country, the latter were to be paid “cash or by electronic funds transfer for work submitted” at the rate of one pula per word for articles and short stories and P400 for a photograph.

Those with knowledge of how the media works will recognise that as the most generous payment terms in the history of freelance journalism. However, contrary to what the contract explicitly stated, the reporters were paid for published journalistic work. The situation began to unravel when a freelancer whose contract was coming to an end was alerted to the fact that the operative payment scheme differed with what the contract stated: meaning that he and other freelancers were paid for work published and not for work submitted. In strict compliance with the contract, a reporter who submitted 20 stories a week and had only two published, had to be paid for all the stories s/he submitted.

Raw copy (especially that of cub reporters) typically goes through various levels of editorial gate-keeping, in the process getting trimmed down in terms of word count. In this particular case however, the generous contract stated that reporters would be paid one pula for articles submitted and not those published. This means that a badly-written article with an original 2000 words that got trimmed down to 200 words, still got a P2000 payment because that is what the contract said.

Theoretically, the same thing could happen with photographs. A former reporter says that while there was no limit on the number of photographs that a reporter could submit, he limited himself to three or four per article. Theoretically, a reporter who submitted 20 articles could also submit a total of 200 photographs and would be entitled to P400 per photograph.From what Sunday Standard learns, DIS quietly paid the freelance who demanded payment that complied with the contract. However, this happened after the issue had gone as far as parliament where the Francistown West MP, Ignatius Moswaane, asked a question about the youth freelance reporter programme, after the freelancer engaged a lawyer and after the intervention of Meshack Mthimkhulu, Assistant Minister of Presidential Affairs and Public Administration.

In a hugely significant development, the reporter was paid last year December.Interestingly, this issue was briefly debated in the previous parliament when Moswaane asked then Minister of Presidential Affairs and Public Administration, Nonofo Molefhi, if he was aware that DIS was possibly in breach of its contract with the youth freelancers as they were only paid for published stories, contrary to the clause which states that they had to be paid for every story submitted. In his response, Molefhi denied that the Department was in breach of the memorandum of agreement (MoA) that it had signed with the freelancers.

“The MoA was amended in November 2016 with the assistance of the Attorney General Chamber’s to read that, ‘the freelancer shall receive one payment for material published, that is whether published online or in hard copy.’ It should be noted that this is standard practice in the media industry internationally.”

This response, which in terms of standard policy and practice in the government, would have been written by DIS itself, obscured the fact that the original MoA plainly stated that freelance reporters would be paid for articles submitted – which is where the contention lies. It didn’t acknowledge that DIS’ contract had been defective and that such lapse carried huge financial implications.

Otherwise well-intentioned and designed to both deal with youth unemployment and provide a required service, the youth freelancer programme was started in 2010 under the administration of former President Ian Khama. The programme, which has now been stopped, employed secondary school (Form 3 and Form 5) leavers as well as graduates to provide journalistic services. It was administered by DIS, whose offices are at the Mass Media Complex in Gaborone. By January 2019, the government had spent P5.8 million on the programme and had budgeted P1m for the 2019/2020 financial year. Molefhi’s answer means that for some seven years until the intervention of the Attorney General Chamber’s, DIS had been engaging youth freelance reporters (about 200 a year on a year’s contract) whom it paid for work published and not work submitted as its own contract explicitly stated.

At the time of Moswaane’s question, the freelancer who would end up getting paid had put in a claim for contractually outstanding payment and Molefhi said he was aware of this case as of administrative effort to resolve it. However, he would leave office in October last year before the issue was resolved. The issue would be taken up by Mthimkhulu whom, Sunday Standard learns, would issue an instruction that the reporter should be paid. Away from politics, Mthimkhulu is a lawyer.

Other young people who also worked on the programme and had similar contracts have learnt about the arrears payout and are also demanding their own. This being the digital age, these former DIS employees are networking digitally (they have a WhatsApp group) and are mobilising a campaign to prosecute their claim as a group. Some have already put in their claims and one of them says that after submitting his claim he was assured that he would be paid. However, he was subsequently sent from pillar to post between headquarters in Gaborone and the bureau that he worked at. Matters came to a head when he received a letter from the DIS Director, Maria Leshongwane, telling him that “we have referred this matter to our legal advisor. We will make a decision regarding your demand based on the legal advice.”

Whatever legal advice is rendered would have to factor in what the constitution says. Section 15 (2) states that “no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.” The significance of this provision is that paying only one person for performing functions of a public office and refusing to pay others who also performed similar functions would constitute discrimination that the constitution outlaws. Besides that, the contract that DIS itself crafted and made the freelancers sign, give the Department no wiggle room and was the precise reason it ultimately capitulated when one of them prosecuted his claim through a lawyer. The one other very relevant legal point is that there are cases where Botswana’s courts have recognised “legitimate expectation” – a principle applied in administrative law that holds that where a public body states that it will do something, a person who has reasonably relied on that statement should be entitled to enforce it. Those whom DIS promised to pay for work submitted have a reasonable expectation that they will be so paid.

The dynamics of a toxic workplace played into this matter in a hugely significant way. Sunday Standard learns that the ex-freelancer who got paid was tipped off about the clause in question by a full-time DIS employee who knew that the issue would get the responsible parties into hot water. That has indeed happened and at a time that COVID-19 has forced all government departments to slash their budgets drastically.

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The Telegraph December 2

Digital edition of The Telegraph, December 2, 2020.