I came across the above statement in the book, Rules and Processes by J Comaroff and S Roberts. It is a Setswana rule that informs how we relate to the law. It is of particular importance in regard to how we understand the current public sector strike.
In our constitutional set up, approval precedes implementation or execution. Thus in regard to public expenditure the executive presents a budget, which parliament must approve, before the executive can execute. Execution itself is the province of the executive. Parliament having approved public withdrawal of funds from the public purse has no authority to tell the executive when to and how to spend the public funds.
The Sunday Standard editorial of 29 May 2011 puts into proper perspective the relationship of Rre Khama’s position that there are no funds for an increase in the public sector wages, and the unions call for parliament to intervene. Those of us who were for sometime involved in the citizen economic empowerment movement were always frustrated by members of parliament who approved a budget that made no provision for citizen companies, but who then later on complained that government did not cater for citizens companies in the very same budget that they approved.
The position being taken by some of our members of parliament is consistent with this hypocritical posturing. They agreed with the executive that there will be no provision for a public sector wage increase. Now they want to intrude into the sphere of the executive in clear disregard of our constitution. In essence what the unions and members of parliament are saying is that a private dispute between an employer and employees can be used to justify disregard of constitutional process. This is not acceptable. We cannot purport to be in support of the rule of law and in the same breath assume positions that demonstrate otherwise.
Rre Khama has an exit point, September 2011, the unions never had an independent exit point. That is their main weakness. They cannot seek to set aside our constitution to cover up their lack of an exit strategy. The best that parliament and the unions can do is to ask Rre Khama to accelerate his exit point. They cannot however succeed in their request if they place conditions that are otherwise unsustainable. Conditions that are intended to save face.
In criminal law if one assaults a person one is charged with assault. If the victim dies then the charge is elevated to murder. If one goes on strike and it turns out that that such a strike was illegal there is no room to argue that you were absent from work because you were on strike. You were absent from work without lawful cause. The fact that you believed yourself to be on a lawful strike is a mitigating factor. It is not a defence to the charge that you were absent from work without a lawful cause. Again the best that the unions and parliament can do is make a request to Rre Khama, as a leader of a country with high unemployment, to reinstate the dismissed employees. There is no room to put this as a demand.
I have also read somewhere where a union leader argues that if government implements the “no-work-no-pay” rule they the union will implement the “no-pay-no-work” rule. My understanding is that the employer has a duty to provide work and for the employee to work. The employer pays the employee for his labour. If there is a backlog of work arising out of the strike the employer has every right to determine that old work be done when the employee resumes work before new work is carried out. The employee does not determine when work is to be done. There is therefore no room to suggest that employees will not do work that they have not been paid for. The statement is in fact senseless.
The employer may even determine that there is a need to work overtime to make up for lost time. The employee cannot refuse to work overtime to make up for lost production. Where the employee works overtime the law covers the measure of the compensation. It is therefore difficult to see what a trade union leader hopes to achieve by putting forth a position that the employer has solution for.
Why can the P500 million not be used to pay lost wages and the balance given to the lowest paid employees? In my view this is the best way for both parliament and the unions to save face in the interim. The employees who went on strike will then not lose their income and there will be some measure of success in regard to reducing the gap between the lowly paid and the highest paid. Parliament will then be able to withdraw from the dispute with its dignity as regards due constitutional process intact.
One must take note that parliament cannot discuss withdrawal from the public funds unless such a bill is presented by a minister of finance. Parliament’s hands are tied. Even if parliament wanted to make funds available for a public sector wage increase it would need the minister of finance to move first. Cabinet can however spend a certain amount without parliament approval. It is to this ability that parliament and the unions may appeal. Trying to exert pressure is not the way to go.
The strike has also allowed us to see developments that a few weeks ago I would not have thought possible. For the past few months I have tried to get our media houses to look at Rre Kwelagobe with an objective eye in much the same way that they look at Rre Khama. I was pleasantly surprised to see the Watchdog Column of The Sunday Standard comparing Rre Rammidi to what Rre Kwelagobe used to be. It made mention that Rre Kwelagobe used to be a politician of a certain caliber before he was taken over by commercial interests. I have never understood why our media houses overlooked Rre Kwelagobe’s centrality to some of the failings of the BDP.
If I advice the minister of education to close a school and she fails to do so and riots erupt at the school, how does the media get to know that I had tendered such advice? Surely we do not expect the minister to go to the media to tell them that she had ignored advice. The only plausible source of the information is me. The question then becomes, why is it so important for me to let the media know that I had tendered such advice? The answer is simple, I want to be seen to be relevant. The follow up question is why?
If I have influence on a government I am in a position to sell such influence to the highest bidder. If my prospective buyers see that I have lost influence they will not come to me. This places pressure on me to make moves to demonstrate that I still have influence. One way of doing this is to precipitate a crisis situation. The crisis will allow me to emerge as a saviour. It may even allow me to demonstrate to a sitting president that I have power to bring him down. This is a high risk move for if the sitting president calls my bluff I am finished.
It is also a high risk move for if my supporters in parliament realize that I am actually asking them to risk early dissolution of parliament when the opposition is on a rise they will see that rather than a leadership style being at issue it is really my personal interest which are at issue, and they may abandon me. I am effectively using my supporters as fodder for my own interests. No thinking person can allow themselves to be used in this fashion.
Even if the president does not call my bluff I am finished, for I have given him ammunition to support him if he decides to alienate me. My conduct suggests that the president will be justified in excluding me from important decisions, for his fear that I may sell such information to the highest bidder will be properly founded. If I can conduct myself in a manner that embarrasses my colleagues so long as it serves my own interests, then no president can be called upon to include me in important national decisions.
Within the arena of freedom of expression there are no sacred cows. Media houses that shy away from interrogating certain individuals are in the same class as a public media that gives only a one sided version of events. The private media cannot call upon the public media to be objective when it fails to interrogate certain individuals and the positions that they take or their centrality to BDP failings.
