Tuesday, May 11, 2021

‘Khama negotiated through the press’

For those who know something about the relationship between the First Citizen and the Fourth Estate, the headline statement would appear to be a contradiction in terms but, as a matter of fact, is contained in papers of a case that goes before the Court of Appeal (CoA) this Friday.

As first respondent in the matter, President Ian Khama is cited in the matter between the Botswana Federation of Public Service Unions (BOFEPUSU) and the government. His involvement in the matter related to a statement that he made at a kgotla meeting in Taung and was subsequently published in the Botswana Daily News.

This happened to be in the middle of salary negotiations between the Directorate of Public Service Management and BOFEPUSU at the Public Service Bargaining Council (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.

What BOFEPUSU is complaining about is that 16 days before PSBC talks could begin, Khama announced a 4 percent increment in salaries at a kgotla meeting. Having originally stated that the increment would only apply to non-BOFEPUSU members, DPSM later changed its statement. This followed a report in the Botswana Daily News that Khama had stated that there would be a 4 percent salary increase for all public servants; that such offer had been made to BOFEPUSU; and that government could not afford to wait for the PSBC because it takes too long to conclude salary negotiations.

The argument that BOFEPUSU is making is that the 4 percent unilateral increase and associated public announcements were flagrant breaches of the legal obligations of the government as employer viz-a-viz. the recognised unions. Upon such conviction the union collective launched an urgent application at the High Court but was unsuccessful. The Court said that it was not persuaded that the award caused, or was likely to cause, BOFEPUSU to suffer any prejudice. In the CoA case, BOFEPUSU is arguing that “the decision appealed against entirely ignored the prejudice to the unions and to the integrity of the collective bargaining process which flowed from the unilateral conduct concerned.” The respondents in the matter are 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 is arguing 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 contests 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 are saying 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.

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