Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Botswana (Ratification: 1997)

The Committee notes the Government’s report. It notes the Government’s statement that a draft Bill has been considered by social partners for submission to the Parliament at its next meeting. The Committee understands that two Bills concerning the application of Convention No. 87 are presently drafted, the Trade Unions and Employer’s Organizations (Amendment) Bill and the Trade Disputes Bill.

The Committee recalls that its previous comments focused on the need to amend the legislation so as to ensure the application of the following Articles of the Convention:

Article 2 of the Convention. (a) Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously noted that article 13 of the Botswana Constitution permits restrictions of the freedom of association of public officers and teachers and that the Trade Unions’ and Employers’ Organizations Act of 1992 (TUEOA) does not cover public officers or persons employed by the local authority not belonging to the industrial class by virtue of the definition of "employee". The Committee notes with interest that the draft Amendment Bill extends the definition of "employee" to include public officers and persons employed by local authorities. It once again requests the Government to indicate whether any restrictions have been applied to teachers in respect of their right to organize.

(b) Right of workers and employers to establish organizations of their own choosing. The Committee notes with interest that the draft Amendment Bill proposes to repeal section 10(4)(a) of the TUEOA providing for the Registrar’s power to refuse registration of a trade union or employers’ organization if he or she considers that another registered trade union or employers’ organization sufficiently represents the interests of workers or employers concerned.

(c) Right of workers and employers to establish organizations without previous authorization. The Committee had previously noted that under section 10(2)(b) and (c) of the TUEOA, the Registrar can refuse to register a trade union or an employers’ organization if its constitution does not comply with the schedule or if any of its principal objects or any other provision of its constitution are unlawful or inconsistent with the Act or any other regulations. It further noted that the Act did not provide for a procedure to rectify formal requirements and, under section 11(1)(a), a trade union or employers’ organization is dissolved following the notification of refusal of registration. Moreover, the Committee had noted that the registration of an organization can be refused under section 10(2)(g) if any of its officers is a person who has, within five years from the date of the application for registration, been convicted of "an offence under the Act". The Committee had also noted that under section 6(2)(d), an application for registration should be accompanied by a list of the full names of all the members of the trade union, federation of trade unions or employers’ organization. In this regard, the Committee requested the Government to indicate the practical impact of this provision and whether cases of non-registration based on non-submission of such list have occurred in the past. The Committee notes with regret that the draft Amendment Bill does not take into account its previous comments. Given that under section 15 of the Act, unregistered organizations are prohibited from carrying out their activities, the Committee once again recalls that national regulations concerning formalities for registration must not be equivalent to a requirement for "previous authorization", in violation of Article 2 of the Convention, nor must they constitute such an obstacle that they amount in practice to a prohibition (see General Survey on freedom of association and collective bargaining, 1994, paragraph 69). The Committee therefore once again requests the Government to amend its legislation to provide for an opportunity to rectify the absence of certain formal requirements provided for in the legislation (section 10(2)(a), (b) and (c)) and to repeal sections 11 and 15 which result in the automatic dissolution and banning of activities of non-registered organizations. It also requests the Government to repeal section 10(2)(g) as the broad notion of an "offence under the Act" could include the legitimate exercise of trade union activities. The Committee does note with interest, however, that section 10(3), which provided for the Registrar’s power to refuse to register a trade union or a federation of trade unions if one of its officers is not a citizen of Botswana, will be repealed under the draft Amendment Bill.

Article 3. (a) Right of workers to elect their representatives freely. The Committee notes with interest that the draft Amendment Bill proposes to repeal section 12(3) of the Trade Unions’ and Employers’ Organizations Act, which provides that the registration of a trade union or a federation of trade unions can be cancelled if any of its officers is not a citizen of Botswana.

With reference to the condition of eligibility concerning conviction, the Committee had previously noted section 22(7) of the TUEOA, which provides that "no person shall be an officer of a trade union or federation of trade unions who has, within the immediately preceding five years, been convicted of an offence under the Act". The Committee notes that the draft Amendment Bill proposes to amend this section and that the new section will read "no person shall be an officer of a trade union or federation of trade unions who has, within the immediately preceding five years, been convicted of an offence and sentenced to a term of imprisonment". The Committee considers that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from the trade union office. Thus, legislation, which establishes excessively broad ineligibility criteria by means of an open-ended definition, is incompatible with the Convention. The Committee requests the Government to amend section 22(7) so as to limit this restriction to convictions clearly touching upon the integrity of the person concerned (see General Survey, 1994, paragraph 120).

On the issue of trade union election, the Committee had previously asked the Government to amend its legislation in respect of the occupational requirement.  While noting that section 22(1) prohibiting non-members of a trade union or a federation of trade unions from becoming officers and section 21 (2), according to which a member of a trade union ceasing to be an employee in an industry with which the trade union is directly concerned shall cease to be a member of the trade union, are to be repealed by the Amendment Bill, there is no proposed amendment to section 22(2). Section 22(2) continues to provide that an officer of a trade union will leave the post once he or she ceases to be a member of the trade union and since, under section 21(1), only employees in the industry may be trade union members, the occupational requirement remains. The Committee therefore requests the Government to amend its legislation in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have previously been employed in the organization concerned.

Furthermore, with reference to its previous comments, the Committee notes that no amendments have been proposed to section 22(3) and (6) of the TUEOA. The Committee therefore once again requests the Government to repeal these provisions and to keep it informed of measures taken or envisaged in this regard.

(b) Right of workers’ organizations to organize their administration and to formulate their programmes. 1. The Committee had previously requested the Government to repeal sections 28 and 29 of the TUEOA, which regulate in a fair amount of details the internal functioning of trade unions particularly as concerns their meetings and provide the Registrar and the Minister with the right to request and to convene the general meetings. The Committee notes that subsection 28(3) providing for the right of the Registrar to convene the general meeting, and reference in section 29 to the right of the Minister to convene extraordinary general meetings, are proposed to be repealed by the draft Amendment Bill. The Committee notes however, that other subsections of section 28 which include provisions making a default in holding a meeting a punishable offence, are maintained. The Committee considers that these provisions constitute an infringement of the right of workers’ organizations to organize their internal administration and that precise questions of quorum and meetings are best left to the by-laws of the union concerned. The Committee therefore once again requests the Government to repeal section 28 and to keep it informed of measures taken or envisaged in this regard.

2. With reference to the application and receipt of funds, the Committee had previously requested the Government to repeal sections 39 and 41 of the TUEOA, which respectively provide for a restrictive list of approved uses of trade union or employers’ organizations’ funds with further uses subject to the Minister’s approval (section 39(2)(c)) and for an interdict to restrain unauthorized or unlawful expenditure of funds on the application of the Registrar or Attorney-General. The Committee notes with regret that the draft Amendment Bill maintains these provisions and therefore once again requests the Government to repeal sections 39 and 41, and to keep it informed of the measures taken or envisaged in this regard. The Committee does note with interest, however, that section 64 of the Act, providing for the restriction concerning receipt of funds originating from outside Botswana, is to be repealed by the draft Amendment Bill.

The Committee had previously requested the Government to limit the powers of the public authorities as concerns the inspections of accounts, books and documents of trade unions by amending sections 45, 51, 52 and 53 of the TUEOA. While noting that section 53 (which provides for the investigation of the membership of any trade union) is proposed to be repealed, sections 45, 51 and 52 providing for the inspection by the Registrar "at any reasonable time" and by the Minister "whenever he considers it necessary in the public interest" are not amended by the draft Bill. It therefore once again requests the Government to limit the powers of the public authorities to the situations noted above.

3. The Committee recalls that it had previously commented on the provision of the Trade Disputes Act empowering the Minister to refer trade disputes to the Industrial Court when "the dispute has or may jeopardize the essentials of life or livelihood of the people of Botswana" and requested, in this respect, to delete the reference to "livelihood", which it considered went beyond the notion of essential services and to limit the powers of the Minister to essential services in the strict sense of the term. The Committee notes that section 14(1)(b) of the draft Trade Dispute Act reproduces this provision and therefore once again asks the Government to delete the reference to "livelihood" in section 14(1)(b) of the Act.

Articles 5 and 6. Right to establish federations and confederations and to affiliate with international organizations. The Committee notes with interest that sections 47 and 63 of the TUEOA, upon which it had previously commented, which provide that trade unions should ask for the prior consent of the Minister in order to form a federation or to be affiliated to any body outside Botswana, are to be repealed by the draft Amendment Bill.

The Committee trusts that the new legislation will take into account the abovementioned points and requests the Government to provide the legislative texts once they have been adopted.