Abrupt Termination of Employee Contracts In a Democratic State: The Case of Botswana

Abstract

Botswana has in the past received accolades of being the most peaceful country in Southern Africa. Any disturbance of this peace is either shunned or seen as a departure from the norm. The advent of trade unions in Botswana has always been looked at with suspicion and they have been seen as militant, which is contrary to the peaceful existence the country has enjoyed regardless of the fact that it is surrounded by countries that have been to war at some point in their history. Therefore, the state has made it a point that any sign of unrest is severely dealt with by the government. Some employees were dismissed un-procedurally as disciplinary procedures were not followed and the court ruled in the employee's favour in 2012. The majority of those dismissed were from the essential services sections of government even though at the beginning some were released through the strike rules agreement between government and unions. Laid down disciplinary rules and procedures of having a hearing were not followed.

An Evaluation of Dispute Resolution in Botswana Public Sector

“…However, due to judicial impartiality, the striking workers were not given an opportunity by the courts to defend themselves as to why they did not obey the Court Order. Indeed this was observed by Salamon (2000) cited in Motshegwa & Bodilenyane 2012) who argued that a court that intervenes in an industrial conflict cannot be 'neutral', it will take one side or the other, and generally in doing so will add the weight of 'legal right' to the management side.…”

“…The other major problem was non-adherence to Collective Agreement by President Khama whereby He addressed collective bargaining issues such as salary increment during his Kgotla (traditional gatherings) meetings. Motshegwa & Bodilenyane (2012) distresses that "It is quite disturbing to realize that in a democratic state like Botswana the government can just act outside its mandate even though judges should be the final arbiters in disputes. One would expect the judicial system to have exercised their restraint to prevent the abuse of power by the state.…”

“…The strike by public-sector unions ('BOFEPUSU') in 2011, was also motivated by inadequate pay and conditions: the workers had not had a salary increase for three years, and working conditions in general, and especially for such groups as nurses combating HIV/AIDS, were reportedly poor. Salamon, (2000) cited in Motshegwa & Bodilenyane (2012) argued that a court that intervenes in an industrial conflict cannot be 'neutral', it will take one side or the other, and generally in doing so will add the weight of 'legal right' to the management side. According to Diamond, 1999 cited in Motshegwa & Bodilenyane (2012) Democracy has to do with how government, interest group leaders exercise their power-not just their promise to democracy in opinions, but their ability to bargain with one another, form coalitions, mobilize public support and respond to public pressures and preferences.…”

“…Salamon, (2000) cited in Motshegwa & Bodilenyane (2012) argued that a court that intervenes in an industrial conflict cannot be 'neutral', it will take one side or the other, and generally in doing so will add the weight of 'legal right' to the management side. According to Diamond, 1999 cited in Motshegwa & Bodilenyane (2012) Democracy has to do with how government, interest group leaders exercise their power-not just their promise to democracy in opinions, but their ability to bargain with one another, form coalitions, mobilize public support and respond to public pressures and preferences. In 2020 public servant and their representatives unions were irked by the decisions by government to defer salary increment to public sector citing the challenges of corona virus.…”

Botswana's Executive Presidency: Implications for democracy

“…Disappointingly, following the Order of the Industrial Court, on the 16 th May 2011 the employer dismissed employees who it said refused to return to work and continued to participate in the unlawful and unprotected strike (Motshegwa, 2012). If things are done procedurally and lawfully, it should be understood that the Order to return to work was nullified by a notice of appeal that was filled on the 6 th of May, 2011 (Motshegwa, 2012). According to the BNF leader Duma Boko, under normal circumstances the whole process should have taken place in the court and is not something to be cited by government (Keoreng, 2011).…”