President Ian Khama will be dragged to court for the second time in three years, accused of abuse of power. In a case that harks back to the controversial Gomolemo Motswaledi civil suit, five Botswana Civil Service Unions have taken President Khama to court and are accusing him of abusing his authority by enacting regulations which literally detain public servants at work. Khama is cited in the court records as second defendant in his capacity as the President of Botswana.
The regulations relate to hours of work, shift work, weekly rests, public holidays, overtime and annual paid leave.
The regulations, a brainchild of President Khama, were published in June this year in the Government Gazette.
In their court bid against Khama and government’s legal adviser, Athaliah Molokomme, the Union wants the court to declare that by enacting the regulations without consulting, Khama acted beyond his powers.
The country’s constitution might, again, be used for Khama’s defence.
Section 47(2) of the Botswana constitution vests the President with executive powers to act on his own without following advice.
According to the Unions, the Public Service Act does not give the President powers to promulgate conditions of service. The Unions intend to have the regulations scrapped.
The case has been filed before the Lobatse High Court and will be heard by judge Mercy Garekwe.
In an affidavit deposed by Botswana Public Employees Union’s President Andrew Motsamai conditions of service have always been settled through collective bargaining.
“The government‘s obligation to settle conditions of service through collective bargaining is also contained in the Applicants’ respective recognition agreements. The Public Service Act also entrenches collective bargaining as the legislature’s preferred means of settling terms and conditions of service,” says Motsamai.
According to Motsamai the Unions had expected Khama to consult before coming up with any regulations. More so that some time in 2009 the Directorate of Public Service Management (DPSM), in collaboration with the Attorney General, drafted some regulations intended to be passed to the presidency for approval.
Later, the Unions were invited by DPSM to make comments on the regulations.
Motsamai contends that the trend in Botswana is that consultation has always preceded formulation of regulations relating to public servants’ conditions of service.
He says that it is also troubling that, despite being gazette, the regulations have not been tabled for debate before parliament.
The Unions have requested for an extra ordinary session of parliament within 30 days to debate the regulations.
The Unions are arguing that in terms of the new Public Service Act, public servants are subjected to less favourable working conditions than those ‘which were applicable immediately prior to the commencement of the current Public Service Act’.
In terms of section 144 (1) of the employment act, the President, or any minister who is vested with regulation making powers, is enjoyed to consult the Labour Advisory Board where it is reasonably practicable to do so before promulgating any regulations that relate to employment.
However, in this case, there is no indication that such consultation ever occurred.
At the time of going to press it was not possible to get a comment from the office of the Attorney General on whether they will oppose the application.