A study by African Journal of Political Science and International Relations has revealed that prospects for effective industrial relations, peace and stability under current labour law, rules and practices in Botswana need careful examination.
The study encompasses an essentially socio-legal inductive examination of a society in transition. It is premised on certain observations and facts and assumptions. The first is that Botswana is a state-centrist society created mostly by legislation, a throw-back from pre-colonial times. Secondly, although Botswana appears to be an economic success story relative to most other African countries in terms of their growth and development, the realities do not lend credence to these perceptions. Thirdly, the seeming success is the visible pockets of affluence and consumerism of the mainly urban middle class. Fourthly, this veneer of prosperity may be a conscious creation by the state or the result of structural processes within the society. It may thus be a means to self-sustenance by the political state. However, it would appear to have no significant positive impact on the lives of the majority of the rural poor.
“In Botswana, the operative framework of labour law does not exist in absolute terms. Constitutional provisions underpin fundamental rights and obligations. Codes of Practice seek to humanize and fill the gaps arising from statutory provisions. Legislation explicitly regulates the nature of the employment contract, basic floor of rights, registration and recognition of unions and collective agreements, dispute resolution mechanisms and administrative oversight by the state,” the study observes.
The study also acknowledges that there is, currently, active state intervention in labour relations. “From the foregoing, the prospects for effective industrial relations, peace and stability under current labour law, rules and practices need careful examination. While the International Labour Organisation (ILO) is assisting in the revision of labour legislation and practice in Botswana as per current international normative standards. These on-going interventions may form a critical part of the future development of labour law and the subsequent domestication of international minimum labour standards,” the study reads. The study further notes, “how long these international conventions can act as a buffer against current international trends remains to be tested.
Most importantly, how willing the political state is to operate on a common deliberative platform with the other social actors in finding solutions to developmental problems rather than assuming a prescriptive dominance will ultimately determine the timbre of intra-societal discourse.”
The study states that the foregoing notwithstanding, both labour peace and stability are now subject to the intersection between the old school of labour law and emerging developments and how that affects labour disputes. “This is because, circumscribed as the institutionalized individualization of contract and the employer’s powers currently are, they still constitute some of the potent causes of labour disputes. This being so, the following sub-section lays the basis for a closer examination of the contentious and vexatious problem of persistent labour agitation and resultant disputes,’ states the study.
The study says that the regulation of labour disputes can be assumed as an indicator of the potential to destabilize the industrial environment. Taken to its logical conclusion, the study says, labour disputes have the capacity to destabilize the state and social structures. Procedurally and substantively, the role of labour law therefore is not to deal with labour disputes perfunctorily. Rather, it should also generate mediatory policies aimed at ensuring that socio-economic activity is not held hostage by mass industrial action.
“Therefore, in the context of an emergent state, it could be productive to accept that, deductively, de-regulation as in neo-liberalism could be the removal of formal controls and allowing common law controls to operate, thus freeing labour law as captive of social forces and active state intervention within the labour market,” says the study. The study suggests that the inherent, even if not necessarily desirable place of disputes should be recognized. “This could provide a better attitude and approach towards dispute resolution. Legislation and policy may impose order and instrumental compliance but they do not necessarily generate legitimacy,” says the study.