Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

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

The Committee notes the information provided by the Government in its first report. It wishes to raise a certain number of points concerning 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 notes that article 13 of the Botswana Constitution permits restrictions of the freedom of association of public officers and teachers. Furthermore, the Trade Unions and Employers’ Organizations Act of 1992 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 requests the Government to indicate in its next report the measures taken or envisaged to ensure the right of public servants to form and join organizations of their own choosing for the furtherance and defence of their members’ occupational interests and to provide the text of any relevant legislation. It further 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 that the Registrar has the 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, by virtue of section 10(4)(a) of the Trade Union and Employers’ Organizations Act. The Committee considers that such authority of the Registrar infringes upon the right of workers and employers to join and form the organization of their own choosing and it therefore requests the Government to take the necessary measures to guarantee this right, even if another registered organization is also representing workers or employers in the same unit, enterprise, sector or industry.

(c) Right of workers and employers to establish organizations without previous authorization. The Committee takes note of sections 6 10 of the Trade Union and Employers’ Organizations Act which set the requirements for the registration of an organization. The Committee notes that under section 10(2)(b) and (c), 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. The Act does 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. The Committee further notes 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 the registration, been convicted of "an offence under the Act". Section 10(3) of the Act provides that the Registrar can also refuse to register a trade union or a federation of trade unions if one of its officers is not a citizen of Botswana. The Committee also notes 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 requests 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. Given that under section 15 of the Act, unregistered organizations are prohibited from carrying out their activities, the Committee 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 requests the Government to amend its legislation to provide for an opportunity to rectify the absence of certain of the formal requirements provided 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 and to repeal the registration requirement under section 10(3) concerning citizenship which the Committee considers to be a violation of the right of workers’ organizations to elect their representatives in full freedom contrary to Article 3 of the Convention.

Article 3. In the first instance, the Committee notes that the legislation in general and the provisions of the Schedule to the Trade Union and Employers’ Organizations Act regulate in a fair amount of detail the internal functioning of workers’ and employers’ organizations and that the Registrar has the authority to cancel registration if he or she is satisfied that the provisions of the constitution of an organization are inconsistent with the numerous requirements set out in the Act or other regulations. The Committee recalls that legislative provisions which regulate in detail the internal functioning of workers’ and employers’ organizations pose a serious risk of interference by the public authorities (see 1994 General Survey, paragraphs 109 and 111).

(a) Right of workers to elect their representatives freely. The Committee notes that section 12(3) of the Trade Union and Employers’ Organizations Act 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. An exemption from this requirement is possible only by the Minister. The Committee recalls that, by virtue of Article 3 of the Convention, workers’ organizations shall have the right to elect their representatives in full freedom and that national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country (see 1994 General Survey, paragraph 118). The Committee therefore requests the Government to amend section 12(3) of the Trade Union and Employers’ Organizations Act to ensure that foreign workers may take up trade union office at least after a reasonable period of residency.

With reference to the condition of eligibility concerning conviction, the Committee notes that under section 22(7) of the Trade Union and Employers’ Organizations Act "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". As the broad notion of "offence under the Act" may concern the exercise of legitimate trade union activity, 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 1994 General Survey, paragraph 120).

The Committee notes that section 22(1) prohibits non-members of a trade union or a federation of trade unions to become an officer of that organization (while under section 21(1) only employees in the industry concerned may be members of a trade union) and requires all candidates for office in workers’ organizations to have been engaged for not less than one year in the industry concerned. Furthermore, under section 22(2), when an officer of the trade union ceases to be a member of a trade union by reason of his or her ceasing to be an employee in the industry with which the trade union is directly concerned, he or she shall cease to be an officer of such organization. The Committee considers that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. When national legislation imposes conditions of this kind on all trade union leaders, there is also a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see 1994 General Survey, paragraph 117). The Committee 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 been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

Furthermore, the Committee notes section 22(3) and (6) of the Trade Union and Employers’ Organizations Act, granting the Registrar the power to remove a trade union treasurer if the Registrar considers that a treasurer is incapable of carrying out his or her functions properly, and section 46 of the Act granting the Registrar the power to apply to the High Court for an interdict prohibiting an officer of the trade union, federation of trade unions or employers’ organization from holding office in or controlling its funds. The Committee recalls that any removal or suspension of trade union officers which is not the result of an internal decision of the trade union, a vote by members or normal judicial proceedings seriously interferes in the exercise of the trade union office to which the officers have been freely elected by the members of their trade unions. Measures of this kind should be solely directed towards protecting the members of organizations and should be only possible through judicial proceedings. The law should lay down sufficiently precise criteria to enable the judicial authority to determine whether a trade union officer has committed acts warranting suspension or removal; provisions which are too vague or fail to comply with the principles of the Convention do not constitute an adequate guarantee. The persons concerned should also enjoy the guarantees of normal judicial procedures (see 1994 General Survey, paragraphs 122 and 123). The Committee therefore requests the Government to repeal theses 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 takes note of section 28(1) and (2) of the Trade Union and Employers’ Organizations Act requiring a registered trade union to hold a general meeting in every year ending on 31 December and in all cases within 15 months after the end of one annual meeting, and of sections 28(3) to (6) and 29 of the same Act respectively which provide the Registrar and the Minister with the right to request and to convene the general meetings of a registered trade union. The Committee considers that these provisions constitute an infringement of the right of workers’ organizations to organize their internal administration. The Committee therefore requests the Government to repeal sections 28 and 29 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 notes that section 39 of the Trade Union and Employers’ Organizations Act provides an exhaustive list of approved uses of trade union or employers’ organizations’ funds. Furthermore, section 39(2)(c) provides that "funds of a registered trade union or employers’ organization may be expended in order to compensate its members for loss arising out of a trade dispute, otherwise than from unlawful industrial action undertaken by those members". Section 41 provides for an interdict to restrain unauthorized or unlawful expenditure of funds on the application of the Registrar or Attorney-General. The Committee recalls that the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities includes in particular autonomy and financial independence and the protection of the assets and property of these organizations. The Committee considers that this right also implies the right to determine the expenditure of their funds in the manner in which the organization considers most appropriate to promote and defend the occupational interests of their members (see 1994 General Survey, paragraphs 124 and 126). The Committee therefore 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 also considers that the restriction concerning receipt of funds originating from outside Botswana provided for in section 64 of the Act is incompatible with the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities as well their right to benefit from any foreign affiliation they might have by virtue of their right under Article 5 of the Convention. It requests the Government to repeal this section and to keep it informed of the measures taken or envisaged in this regard.

The Committee further notes sections 45, 51, 52 and 53 of the Trade Union and Employers’ Organizations Act providing for the inspections of accounts, books and documents of a trade union by a Registrar "at any reasonable time" and by a Minister "whenever he considers it necessary in the public interest". Given that as a result of such investigation, the registration of the trade union may be cancelled, the Committee recalls that the supervision of trade union accounts should be limited to the obligation of submitting periodic financial reports or where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law. Similarly, there is no violation of the Convention if such verification is limited to exceptional cases, for example, in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see 1994 General Survey, paragraph 125). It therefore requests the Government to limit the powers of the public authorities to the situations noted above.

3. The Committee notes that under section 35 of the Trade Disputes Act, the Minister has a discretionary power to declare unlawful sympathetic or other industrial action having other purpose in addition to the furtherance of a trade dispute. The Committee recalls that workers should be able to take sympathy action provided that the initial strike they are supporting is itself lawful. Furthermore, in the view of the Committee, organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living (see 1994 General Survey, paragraphs 165 and 168). It requests the Government to amend its legislation in order to ensure that organizations responsible for defending workers’ interests may have recourse to sympathy or protest action and keep it informed of measures taken or envisaged in this regard.

The Committee notes that section 9(1)(a) of the Trade Dispute Act, read together with section 37, empowers the Minister to refer trade union disputes to the Industrial Court in cases when he or she has declared an industrial action to be unlawful or to declare such action unlawful after the Industrial Court has reached its decision, which appears to have the impact of banning strike action in such cases. Section 9(c) of the Act empowers 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". The Committee wishes to recall in this regard that the imposition of compulsory arbitration is only acceptable in cases of strikes in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population, or in cases of acute national crises. The Committee therefore requests the Government to delete the reference to "livelihood" in section 9(1)(c) of the Act which it considers goes beyond the notion of essential services and to limit the powers of the Minister under sections 9(1)(a) and 37 to essential services in the strict sense of the term. As for the sanctions imposed by the Trade Dispute Act for "unlawful industrial action", including industrial action which the supervisory bodies consider the workers should have the right to call, section 39 provides for a fine or imprisonment up to three months, or both. In this regard, the Committee wishes to recall that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Such sanctions should not be disproportionate to the seriousness of the violation (see 1994 General Survey, paragraphs 177-178).

Articles 5 and 6. Right to establish federations and confederations and to affiliate with international organizations. The Committee notes sections 47 and 63 of the Trade Union and Employers’ Organizations Act respectively 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. It considers prior consent by the public authorities for the formation of federations or for affiliation to international organizations to be contrary to Articles 5 and 6 and requests the Government to amend its legislation in order to ensure that workers’ organizations may freely establish and join federations and affiliate with international organizations without prior authorization of the Minister and limited only to the organizations’ own constitution and rules.

-           The Committee requests the Government to provide information in its next report on the measures taken or envisaged in respect of the abovementioned points and draws the Government’s attention to the availability of the technical assistance of the Office in this regard.