Unions call for establishment of Labour Appeal Court

Say the new constitution should provide for such

Labour movements say the new constitution to be formulated from the envisaged review, must provide for the Labour Appeal Court. Botswana Federation of Trade Unions ( BFTU) and Botswana Federation of Public Private and Parastatal Sector Unions ( BOFEPUSU) have come up with a position paper to be presented for the constitutional review.

The duo indicated that judges of the Industrial Court and the Appeals Court must be appointed from the ranks of specialist labour law practitioners, that is, practising advocates or attorneys, and or lawyers with demonstrable labour law knowledge or experience and in some cases suitably qualified academics.

The Judges of the Industrial Court and the Labour Appeals Court must be appointed in the same manner as Judges of the High Court.

“As a major consumer of legal/ judicial services we support a fundamental re- configuration of the Judiciary headed by a Chief Justice who will also be the President of the Court of Appeal as per international best practice. “We also support strict separation of judicial office in terms of which judges of the High Court cannot sit as Justices of Appeal. We support those qualifications of Justices of Appeal should be distinctly higher than those of judges of the High Court. “We are of the firm view that the Judicial Service Commission must be made up of the Chief Justice as the Chairperson, a representative of the Magistracy, Industrial Court, High Court, Court of Appeal, a representative of Civil Society, Law Society, a representative of the Department of Law from the University of Botswana and Parliament and the Attorney General,” reads the position paper.

The two labour centres explained that among judicial reforms that they support is a transparent and merit- based system of appointing judges. They pointed out that the appointment of judges is a crucial gatekeeper that determines who goes to the bench, holding what philosophy and doing what with it, and to whom and in what manner they are accountable.

“We are of the view that the new constitution should create a new apex court in the form of a Constitutional Court. The benefits of a new Constitutional Court are that it would create a break from the past in the judiciary, allowing a new breed of legal minds to take charge of constitutional adjudication and operationalizing the new constitution.

“This would be a court to deal with the difficult and sensitive issues to do with governance and constitutional interpretation and enforcement. We have been advised that our constitution does not provide, in explicit terms for separation of powers.

“The doctrine of separation of powers consists of several principles, including: institutional division of state governance; independence of each branch,” posited the labour movements.

It is argued that currently, the executive remains the most powerful branch of government. The new constitution must provide for some checks on executive power, and oversight mechanisms to hold each of the three branches accountable, stated BFTU and BOFEPUSU.

They proposed that core labour rights must be entrenched in the revised constitution.

“Our new constitution must unequivocally proclaim that everyone has the right to work; fair labour practices; to form and join a trade union and to participate in the union’s activities; the right to strike; the right to form and join an employers’ organisation and to participate in the activities of the organisation; and every trade union, employers’ organisation and employer has the right to engage in collective bargaining,” the unions demanded.

According to the unions, the constitution must oblige the State to recognise the unique status and natural maternal functions of women in society and undertake as a result to take appropriate measures to ensure that the working mother is afforded protection with respect to paid leave and her conditions at work. The unions contend that no woman should be dismissed, or otherwise disadvantaged for anything related to her reproductive role. “The new constitution should mandate that laws be enacted to prevent discrimination, including workplace discrimination. The purpose of such laws would be to ensure workplace equity. “The said laws should prohibit unfair discrimination in the workplace and guarantee equal opportunity and fair treatment to all employees. “The constitution should stipulate that for purposes of effective collective bargaining employers, including the State are obliged to disclose all relevant information”.