Ratified treaties;¹ Foreign case law²

Right to strike/ Essential services/ Use of international law as a guide for interpreting domestic law

Registered trade unions representing various categories of public sector employees sought orders declaring invalid Section 49 of the Trade Disputes Act (“the TDA”)³ and the amendment, effected through Statutory Instrument No. 57 of 2011 (“SI 57”) by the Minister of Labour and Home Affairs, of the schedule to the TDA which set out the list of essential services. With this amendment the list of essential services was broadened so as to include veterinary services, diamond cutting, sorting and selling services, and teaching services.

The Court upheld the applicants’ position that Section 49 of the TDA was unconstitutional since the Constitution assigns the power to legislate to Parliament, and then addressed the three arguments put forward by the applicants regarding the invalidity of SI 57. First, the applicants argued that SI 57 was “ultra vires Section 49 of the TDA, because, on a proper interpretation, that section does not empower the Minister to publish an order – as he did – which is incompatible with Botswana’s ILO obligations”.⁴ The Court observed that “[i]n this country, the courts take the broad view that constitutional and statutory provisions must be construed to uphold international law”.⁵  The Court then noted that Botswana has ratified two ILO Conventions, namely No. 87 on Freedom of Association and Protection of the Right to Organize and No. 98 on the Right to Organize and Collective Bargaining, and that the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), in interpreting these conventions, has defined essential services “for the purpose of limiting the right to strike” as “services the interruption of which would endanger life, personal safety or the health of part of or the whole population”.⁶ Moreover, it observed that “their [the experts’] opinions are generally regarded as a source of international labour law”⁷ and that the CEACR had also addressed an observation to the Government of Botswana in which it expressed the view that “the new categories added to the Schedule do not constitute essential services in the strict sense of the term” and had requested the amendment to that Schedule.⁸ In the light of the above the Court concluded that Section 49, assuming its constitutional validity, should be interpreted as not authorising a Minister to pass a statutory instrument that violates Botswana’s international law obligations. Therefore SI 57 was invalid.

The Court then examined whether the argument according to which the list of essential services was in breach of Section 13 of the Constitution, which guarantees freedom of association but also permits limitations which are reasonably justifiable in a democratic society. The Court observed that, not being clear whether under Section 13 freedom of association includes the right to strike, “it is incumbent upon this court … to interpret the said section in a manner that is consistent with international law”⁹ and it noted that “[t]he right to freedom of association in international law includes the right to strike.”¹⁰ Moreover, “international law does not accept the prohibition of strike action to safeguard economic interests as a limitation that is reasonably justifiable in a democratic society”, which was the alleged justification for most of the added categories of essential services, and “the ILO committee of experts (…) seems to accept that it is reasonably justifiable in a democratic society to restrict the right to strike only to the extent that meets its definition of ‘essential services’”.¹¹ Therefore SI 57 was unconstitutional.

The Court finally turned to the applicants’ contention that they had a legitimate expectation that the executive would take decisions consistent with Botswana’s international obligations. In this regard the Court took the view that “[t]he act of signing [ILO Conventions] gave rise to an expectation that the officers of the Executive would not act in a manner that contradicts the letter and spirit of those Conventions unless they (applicants) have been afforded the opportunity to argue to the contrary.”¹² Therefore the promulgation of SI 57 was null.

Thus relying on Conventions Nos. 87 and 98 and the pronouncements of the ILO Committee of Experts, the Court decided that SI 57, which broadened the list of essential services, was invalid and of no force or effect.

¹ ILO Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87); ILO Right to Organize and Collective Bargaining Convention, 1949 (No. 98).   

² Australia, South Africa, UK, United States. The Court also referred to the Botswana case Attorney-General v. Dow, 3 July 1992, BLR 119 (CA).

³ Section 49: “The Minister may, by order published in the Gazette, amend the Schedule.”

⁴ Para. 28.4 of the decision.

⁵ Para. 192 of the decision.

⁶ ILO: Freedom of Association and Collective Bargaining, General Survey of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 81th Session, Geneva, 1994, Report III(4B), para. 159.

⁷ Para. 223 of the decision, which also refers to an identical conclusion in the Botswana Railways v Botswana Railways Train Crew Union, Civil Appeal No. CA CACLB -042-09.

⁸ Observation by the Committee of Experts on the application by Botswana of ILO Convention No. 87 published in 2012.

⁹ Para. 249 of the decision.

¹⁰ Para. 250 of the decision.

¹¹ Para. 252 of the decision.

¹² Para. 276 of the decision.