Thursday, May 6, 2021

Parliament violated DCEC workers’ Constitutional right – court

Members of the Directorate on Corruption and Economic Crime (DCEC) can join workers unions despite a law prohibiting them from unionising. The High Court on Friday struck down as unconstitutional portions of the amendment of the Directorate of the DCEC Act aimed at prohibiting members of the agency from being members of a trade union.

In July 2013, Parliament amended the DCEC Act. The Amendment Act 5 (c) states that “an officer of the directorate shall not become a member of any trade union or anybody or association, the object of which is to control or influence conditions of employment or profession provided that an officer may become a member of such body or association which maybe constituted and regulated pursuant to this Act.” Striking down Sections 5 (c) Justice Raneire Shakes Busang observed that there is nothing in the original DCEC Act about constitution and regulation of the trade unions.

“The legislature violated and infringed upon the constitutional rights of association, purporting to give back the same right, but failed in its endeavour to do so,” he said. Justice Busang said if the intention of the legislature was that the directorate’s employees can only join trade unions established in terms of the DCEC Act, the corollary to that would be that the DCEC Act makes provision for the constitution and regulation of trade unions. He noted that DCEC Director Ruth Seretse’s affidavit does not say that there is such a provision in the Act.

“The DCEC Act was in my understanding, enacted for the establishment of the Directorate, secondly to put in place legal provisions for the prevention and investigation of suspected case of corruption,” said Busang. He said if it was the intention of the legislature to exclude the employees of DCEC from the operations of the Public Service Act, it would have done so in explicit terms as it did with the army, police and prison service.

Busang noted that as the law stands the Directorate’s employees are barred from joining trade unions of their choices or any trade union because clearly it is a fallacy to imply that there is an existing law under DCEC on registration of trade Unions. “They are the only public servants, with the exception of the armed forces, police and prison officers who cannot join trade unions.

They are worse off than civilians of the armed forces and police,” said Justice Busang. He said with the exceptions of the few such as armed force, police and prison officers as, employees of DCEC are public officers and therefore are entitled constitutionally and in terms of the PSA and TUEO Act to join trade unions. He said there is nothing in Seretse’s affidavit that suggests messengers, drivers, cleaners and gardeners have access to confidential information.

“I need not to be employed by the directorate, for me to know its core professional mandate and that it is not all of the employees who do investigations and related duties,” said Busang. He said the Directorate General’s mandate in her capacity as such is not the same as those of a messenger, driver and gardener.

“I have no difficulty in finding the equality argument to be preposterous and baseless. The sensitive nature of the directorate in my understanding is in relation to the general investigations of cases from time of receipt of reports to the arraignment of suspects before court and nothing more,” he said. Other than the sensitivity argument, which is not explained how it is greater that the reasons for exempting armed and disciplined forces no reasons have been advanced for liming the right (to join trade unions). “Section 5 (c) is without doubt a limitation of freedom of association,” said Justice Busang. The judge said the section in question is not reasonably justifiable for a number of reasons.

Firstly, the justice Busang said, for its blanket application, it seeks to render meaningless other statutes such as the Trade Disputes Act and Trade Unions and Employers’ Organisation (TUEO) Act and the Public Service Act (PSA) when it is a law with no greater effect and force. The Attorney General chose not to come to court for argument nor file its head of argument in support of its case.

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