Tuesday, June 22, 2021

“Khama has no powers to determine Public Service salaries” ÔÇô High Court

Lobatse High Court’s Justice Michael Leburu on Monday ruled that President Ian Khama and the Directorate on Public Service Director (DPSM) have no power to decide on salary negotiations of public service and other conditions of service. 

Botswana Federation of Public Sector Unions (BOFEPUSU) took President Khama and the DPSM to court seeking a declarator on whether there are two centres of power in deciding on the conditions of service of employees including salaries.

 The High Court ruled that it was unlawful for Khama to vary conditions of service for employees outside the laid down procedure being the Public Service Bargaining Council (PSBC).  The judge found that PSBC was created through an Act of Parliament and only Parliament was empowered to make laws.

 Leburu also found that Parliament created PSBC for a purpose; which is for negotiations of public servants salaries and conditions of service. 

Leburu also agreed with the union’s lawyers that increasing salaries or varying conditions of service for employees amounted to bad faith. He added that power to vary conditions of service for civil servants only lie with PSBC. 

In terms of a PSBC rule, negotiating parties should neither negotiate through the media nor pre-empt negotiation outcomes through the media. A related rule says that if the parties wish to inform the general public of the progress being made in the negotiations, they should release a joint press statement as opposed to issuing unilateral statements.

The respondents in the matter were Khama, the Director of the Public Service Management and the Attorney General in that order.
One of the arguments that they are advancing is that in terms of the law, Khama is empowered to do what he did. In its papers, DPSM  had argued that the president exercised a prerogative (powers to confer honours, pardon offenders, declare war, make peace, appoint and recognise diplomatic agents, and ratify international treaties) with which the court could not interfere.
BOFEPUSU had contested such assertion, pointing out in its rebuttal that DPSM does not state what executive prerogative the president exercised, “but if any prerogative was exercised, which the Appellants dispute, the president was duty bound to exercise it within the confines of the law.

 “The courts have jurisdiction to enquire into the existence and scope of prerogative power. It is now well established that the exercise of prerogative is reviewable on conventional common law grounds, including legality,” the unions’ lawyers argued. The unions also argued that Khama cannot, in the exercise of powers of prerogative, invoke his powers to act in breach of government’s statutory obligation to negotiate in good faith.

BOFEUPSU also challenged what it calls President Khama’s persistent interference in salary negotiations and bargaining processes by making unilateral announcements and pronouncements on salaries and other conditions of service of the public service outside the PSBC. The case follows President Khama’s decision to announce a four percent salary hike for public workers last year while wage negotiations were still on-going at the PSBC. The union wanted the courts to declare the increment illegal saying it was done outside the mandated forum, the bargaining council.


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