Tuesday, January 18, 2022

High Court overturns BOFEPUSU de-registration

High Court Judge Michael Leburu last week delivered a land mark ruling in the long running legal tussle between Botswana Federation of Public Sector Unions (BOFEPUSU) and government over the decision by the Registrar of Trade Unions to de-register BOFEPUSU. For years now, BOFEPUSU has been fighting for its life after it was de-registered by the Registrar on the grounds that it failed to satisfy the dictates of the Trade Unions and Employers Organisation Act.

In July 2009, BOFEPUSU suffered a major setback when Justice Singh Walia upheld the decision of the Registrar, saying the federation had failed to comply with section 45(3) of the TUEOA, which stipulates that a general meeting of each of BOFEPUSU’s affiliate trade unions should resolve, by secret ballot, to form a federation. At the time, Justice Walia said the fact that it was administratively cumbersome to comply with the Act was not an excuse for BOFEPUSU to disregard the law. Through Attorney Tshiamo Rantao of Rantao Kewagamang, BOFEPUSU later filed a constitutional application seeking a declaration that section 45(3) of the TUEOA was unconstitutional, which would, by extension, nullify the decision of the Registrar. “This provision is an unreasonable limitation of the freedom to unionize as enshrined in Section 13 of the constitution. It is simply impossible to have tens of thousands of union members at one venue to vote on the decision to federate,” argued Andrew Motsamai, then BOFEPUSU Secretary General.

The federation sought an order striking down section 45 (3), 4(4) and reregulation 13 of TUEOA, saying they are unreasonable and unjustifiable limitations on the right to freedom of association and ultra vires section 13 of the constitution of Botswana. Regulation 13 of the TUEOA requires that not later than seven days before the ballot for federating, each union must provide the Registrar with a complete list, in alphabetical, order of its members, their union numbers and full names and whether their subscription is not in arrears. Each of the members is then required to cast a vote for or against federation. BOFEPUSU contends that given its 90,000 strong membership, such a list would run into several hundred pages.

They argued that the regulation is impossibly cumbersome and time consuming and insisted on the usual and long standing practise of mandating delegates. They insist that section 13 clearly states that no person shall be hindered in the enjoyment of his or her right to freedom of assembly and association. “While the legislative objective of ensuring that the decision to federate is taken freely and fairly was worthwhile, the means of achieving that objective is restrictive, onerous, unreasonable and unjustifiable in a democratic society,” argued BOFEPUSU. While he agreed with the AG’s contention that the primary impetus of section 45 was to ensure that the process of federating is democratically reached by every member of the union, Justice Leburu asked whether the requisition of voting by each and every member, supervised by a government official, was necessary to accomplish such a democratic imperative. He agreed with the unions that the procedure outlined by the Act in regulation 13 is cumbersome and impractical.

“Delegated representatives can always be used to vote on behalf of their individual members and such process would still muster the democratic imperative of federating. What purpose would be served by individually calling out members to present themselves to a government supervisor before voting? Such a tedious process impairs and hinders BOFEPUSU’s right to federate,” said Justice Leburu He further said government had failed to demonstrate BOFEPUSU’s inability to deal with their internal structural mechanism with respect to voting to federate. He then addressed himself to the requirement that the decision should be taken by two thirds of the members of the respective unions.

He found that such a requirement poses practical difficulties which hinder enjoyment of the right to federate within a democratic society. He described government’s oversight on the federation’s ballot as intrusive and equal to over regulation. “Such overregulation is unwarranted and does not even satisfy the fundamental rationale of regulation. Other voluntary associations do not need a government officer to supervise their democratic exercise to merge. This supervision is not of fundamental importance within a democratic society to override the importance of a right to freedom of association,” said Justice Leburu. He added that the right to federate is the bone of any democratic government as it is even recognised by the universal declaration of human rights.

He further said democracy admits of union autonomy, which explains why unions are imbued with the necessary juristic personality. He added that ILO statutes guarantee workers rights to freely organise their administration and activities and bars public authorities from interfering in unions activities. Justice Leburu said it is important for the courts of Botswana not to interpret legislation in a manner that conflicts with international obligations Botswana has undertaken.

He said Botswana has ratified ILO conventions which bestow upon trade unions the freedom of association and the right to organisation and collective bargaining. “The protection of guaranteed rights is a primary objective of the constitution of Botswana and limiting their enjoyment is an exception to their protection,” he said. He also highlighted another handicap in regulation 13 (2) which states that no step shall be taken under the regulation without consent from the minister. He said section 45 does not make the formation of a federation conditional upon the grant of consent by the minister, such that regulation 13 (2) runs contrary to section 45. “A regulation that is inconsistent with a parent provision of the main act is ripe to be impugned and jettisoned.

Regulation 13(2) is liable to be struck down. Once struck down, the remaining provisions of regulation 13 cannot survive on their own,”he said. In the end, Justice Leburu issued an order striking down regulation 13 and section 45 (3) and 45 (4) of the TUEOA, saying they were ultra vires section 13 of the constitution. He also declared the de registration of BOFEPUSU a nullity and ordered government to bear the costs of the suits on a party to party scale.

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