Monday, January 17, 2022

Rari alleged to have fabricated Congress resolution on term limits

The upcoming year will be an unusually eventful one for the Botswana Sectors of Educators Union (BOSETU) as four of its members attempt to topple its longest-serving Secretary General, Tobokani Rari.

In a case freshly deposited before Justice Chris Gabanagae, the four members (Tshetsana Motsatsing, Namwaka Shamukuni, Carthage Kenosi and Matthews Masole) allege that Rari “deliberately” fabricated resolutions of a national congress (the highest decision-making body in the Union) for reasons of personal benefit. In aid of that argument, the applicants have placed before the court, documents relating to union business that is the subject of contention.

At its 2008 national congress, at a time that it was still called the Botswana Federation of Secondary Teachers (BOFESETE), the Union resolved to change its name to the Botswana Sectors of Educators Union. This was meant to open the Union’s membership to everybody else in the education sector – like workers in higher learning institutions and primary schools. It is this resolution that enabled Masole, a lecturer at the Tlokweng College of Education, to be part of this action. Motsatsing teaches at Gantsi Senior Secondary School, Shamukuni at Molefi Senior Secondary School in Mochudi and Kenosi at Naledi Senior Secondary School in Gaborone.

The 2008 Congress also resolved that the term of office for the position of Secretary General (SG) should be restricted to two years. As a result of the latter, a new constitution that reflected the latter constitutional amendment, was registered with the Registrar of Trade Unions in 2011 by the member who held the SG position at the time. The clause in question, numbered as Article 17.3.11, reads in full: “That, if and when the Secretary General is seconded to the Union on a permanent basis, s/he may only serve two terms of office consecutively.”

BOSETU would hold another national congress in 2013, a special one, which had been called for the purpose of discussing the amendments that had already been made. At this point, Rari was the SG.

“During Congress, it was established that as the Secretary General was presenting, Article 17.3.11 had been amended or altered despite the fact that it was not part of the proposed amendments … The clause restricting the Secretary General’s term of office was replaced with a clause which provided for dissemination of minutes,” one part of the “Particulars of Claim” by the quartet reads.

The replacement clause, the one the quartet is challenging and one still in force, reads as follows: “Promptly disseminate minutes of meetings to the Union and to the National Executive Committee.”

The “Particulars of Claim” go on to state that this anomaly was brought to Rari’s attention and that the Congress, which is the highest decision-making body in the Union, instructed him to restore the original clause it had earlier adopted before submitting a copy of the amendments to the Registrar of Trade Unions. The four member-applicants are keen to stress that the proposed amendments did not involve any amendment to Clause 17.3.11: “As altered, Article 17.3.11 is unlawful and null and void, as it violates constitutional amendment processes.”

After making a point about the inviolability of constitutional amendments to a national union, the applicants point an accusing finger at Rari, who is cited as the first defendant, for not only acting outside his mandate but also acting unlawfully: “The first defendant, deliberately and intentionally, altered the constitution without authority or unlawfully, in bad faith, and did so to benefit himself. The first defendant has repeatedly failed, refused or neglected to act in accordance with repeated mandates given at Congress to have the matter resolved. Owing to this, the first respondent is now in his fourth term in office, having started his first in 2011.”

The lifespan of a term of office for a BOSETU SG is three years. Rari is in his 10th year as SG and having been re-elected last year, will serve until 2024. This makes him the longest-serving BOSETU SG yet. On the basis of the intrigue they detail, the applicants assert that Rari’s tenure as SG “violates the original Article 17.3.11 of the constitution and is therefore unlawful.” They go farther to state that in an attempt to have this matter resolved, they wrote a letter to BOSETU’s president, Winston Radikolo “petitioning him to take action in respect of among other issues, the unauthorised amendment.”

The petition in question is a year-old letter which is itself not annexed to the court papers but Radikolo’s response letter is. In his response, Radikolo denies that there was ever any “unilateral amendment” of the BOSETU constitution.

“Indeed in the previous constitution of BOSETU, there existed term limits in the office of the Secretary General, but the draft that was adopted by Congress and subsequently registered did not contain any term limits. It is in accordance with that Constitution that the current Secretary General currently holds office and nothing about his occupation or holding of office is unlawful,” his January 20, 2021 letter reads.

In their “Particulars of Claim”, the applicants note that Radikolo didn’t provide any evidence to back up his claim that the draft that Congress adopted didn’t specify term limits.

At least from a reading of Radikolo’s letter, the applicants raised some other issues about Rari. In a section with the sub-heading “Secretary General”, the BOSETU president confirms that Rari “was indeed granted a scholarship to pursue a graduate degree in labour-related matters as a measure of building capacity and further to afford him sponsorship for educational advancement as has been enjoyed by many comrades in BOSETU.” In apparent reference to a contentious issue raised about a forensic audit report, Radikolo writes that “a fair reading of the forensic audit report will indicate that there is nowhere that the Secretary General is identified as having done anything criminal or illegal in respect of BOSETU funds.” He adds that “what the report actually underscores is how the former [Executive Secretary] misled not only the Secretary General but the [National Executive Committee] into entering into some of the transactions which have been condemned in the report.” It would seem that the members who wrote the letter had demanded that a “lifestyle audit” (whose target is not clear from reading Radikolo’s response) be conducted. His response to the demand reads: “It was not the scope of the report to conduct any lifestyle audit on anyone, further, the Secretary General had no interaction with the report as this was independent of the Union and its leadership but was solely conducted by professionals keeping in tune with their respective ethics.”

The applicants, who are represented by Rockfall Lekgowe Law Group in Gaborone, want the court to declare that the alteration of the clause in question was “fraudulent and therefore unlawful”, that the original Article 17.3.11 be restored, that the SG position be declared vacant because Rari is holding such office unlawfully and that BOSETU should hold fresh elections for the SG position within 21 days of the order being made.

The Registrar of Trade Unions is cited as the fourth defendant. In terms of the law, this office is required to ensure that every amendment made to the constitution of a registered trade union “has been validly made and is not unlawful.”

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