Thursday, July 18, 2024

The issue is not Essential Services, it is restricting civil liberties

Over the weekend the teachers, together with diamond sorters and those offering veterinary services were told that ‘from now henceforth you are essential services’. The government amended the Trade Dispute Act. The law has become an ass. Yes Dickens was right: “the law is a assÔÇöa idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experienceÔÇöby experience.”

On a day that everything is functioning well; when the wind blows as it should and the seasons follow each other predictably, then to be declared essential service is an honour and recognition of the critical nature of one’s services. Things are however not going as they should. To be declared essential service is a curse and a pain. It has become a tool to restrict one’s democratic right to strike and express grievances. Many of us were delighted when the strike was suspended, since it offered temporary relief to the battered public service. We thought also that the government would now engage BOFEPUSU and other unions on how future strikes could be averted. Our hope was that critical lessons were learnt which would aid parties to dialogue and define processes which will avert future strikes. Such process would be of open dialogue and not of restricting engagement. That’s not how the government was thinking. The government in the process was considering how to best amend the law to pin the teachers down. “How can we by legal force make the teachers stay in schools?” Instead of wondering: “How can we best make the conditions of service conducive and channels of engagement open such that we will be able to avert future strikes?” The government preferred legal force. This is most unfortunate. The government has failed to consult widely the people who would be affected by this law and has unilaterally amended and effected the law. Why did the government fail to take sufficient time to negotiate with the teachers’ unions about this impending change of status of their members? It is clear that the government knew that its proposition would be considered offensive and subsequently rejected by the unions.

Kentse Nchi Rammidi has observed that declaring teachers essential service is a clear sign of the “regression of democracy”. His observation is spot on. What Rammidi meant was that instead of progressing as a more open society, we are increasingly regressing and becoming more closed. Unilateralism has taken over collectivism. Classifying teachers as essential services in the middle of a strike; we must remember that the strike has been suspended, is making teachers more militant and filling them with fury and bitterness. Breeding a host of disgruntled and angry teachers in itself creates an atmosphere which is not conducive for learning and teaching in schools across the country. Why escalate things when you could help calm them? Why didn’t the government wait until the current battles have been resolved before it brought the proposal of amending the law, especially that BOFEPUSU has a number of pending cases in court against the government? As you read this article, a number of schools remain closed around the country because some of the teachers are implementing something called no pay, no work. To worsen matters by declaring them essential services, is not to address problems that face schools.

I am not an attorney but recently I have taken much interest to the reading of our constitution and section 13(1) of the Botswana Constitution observes that: “Except with his or her own consent, no person shall be hindered in the enjoyment of his or her freedom of assembly and association, that is to say, his or her right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his or her interests.” It is clear that declaring teachers essential service will take away their power to unionize as they have previously done. The government’s move also demonstrates that the strike has hurt the schools more than any other sector though the government portrayed the strike as having minimum effect on schools. If the government can declare any sector as an essential service unilaterally, this begs the question: “Who is not essential?” Is essential services, whoever government labels essential? Who is safe from the essential service claws? The argument cannot be that declaring teaching an essential service is important to safeguarding learners’ interests.

Actually such an argument can be extended to anyone who works in whichever public service sector.

For instance those who process government workers’ salaries may be declared essential services since if they went on strike they will paralyze the entire government? Loans, medical bills and utilities will not be paid and people’s lives, safety and businesses may be compromised.

Classifying teachers as essential services erodes their collective bargaining rights. Certainly essential services cannot be defined as “whatever government says is essential.” The South African Labour Relations Act has defined an essential service narrowly as a “service which, if interrupted, would endanger or inconvenience the life or the health of people”. I believe essential services are important. I however believe they need to be limited to emergency issues of health and threat to life and narrowly apply to areas such as medicine, nursing and fire services. The decision to classify a profession as an essential service needs to be discussed and not implemented by brute force as in the current case. There needs to be broad consultation with the aim of resolving the current impasse in a pragmatic manner. What we are seeing appears to be an instance of limiting civil liberties. The government appears vindictive and adopting a strategy of declaring teachers as essential service as a mechanism of punishing teachers. Unfortunately such an approach is bound to fail. Teachers are much more likely to device a counter plan just as they did with no pay no work.

Yes, the government may fire many teachers for professional misconduct; however that will not address the root cause of the problem; it will only harden positions. Government needs to remember that not everything can be addressed through legal brute force. There must be a time to fight and a time to pull back. You cannot always vanquish your enemies. Some you will have to bring them closer. Unions must therefore be seen as partners in a democratic setup and not enemies that must be defeated. The current classification of teachers as essential services reminds us of the Media Practitioners Bill, published by the Minister of Communications, Science and Technology on the 27th June 2008. Many will remember that the said legislation was criticised by the media fraternity for falling short of the principles of independency, political non-interference, promotion of self regulation and for infringing on the right to freedom of expression as entrenched in the Constitution of Botswana. It appears the government’s project of limiting civil liberties is not yet complete.

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