Botswana Public Employees Union (BOPEU) National Appeals Board (NAB) has reversed a decision by union President Masego Mogwera to suspend National Executive Committee member Motswaledi Monaiwa. Monaiwa and other NEC members were suspended last year following a controversial meeting in July where they suspended President Mogwera and other NEC members.
Mogwera would later suspend the NEC members who participated in the meeting that suspended her. This resulted in court battles between the two camps in the build up to the union’s elective congress in Kasane. NAB sitting last week resolved to set aside Monaiwa’s suspension. “Upon perusal of documents filed on records and respondent having not filed their rebuttal, despite an opportunity having been provided for them to do so, the NAB allows the appeal to succeed.
“The appellant’s letter of suspension of 29th July 2018 is hereby declared irregular and is set aside. The appellant is hereby restored to his full union membership rights and regional chairmanship effective 22nd February 2019,” said NAB chairperson Ruth Khupe in her judgement.
The NAB stated in its findings that Monaiwa’s right to fully belong to a union and participate in union activities is jeopardised due to the suspension. It further stated that according tot Article 47.4 of BOPEU Constitution the president has no power to unilaterally suspend a member.
“The president can only suspend a member once there is jurisdictional trigger from NEC to commence disciplinary proceedings against a member. Once there has been such commencement then and only then the president can suspend such a member. “The power to commence disciplinary proceedings against a member is vested on the NEC only, which is when a principle of delegatus protestas would be applicable to the president.
In this instant case, the appellant and other NEC members were suspended consequent to a discussion surrounding the conduct of the president. Therefore, the president was conflicted in this matter,” said Khupe adding that this is contrary to the principle of natural justice.
NAB stated that notably the suspension was done merely two days to the issuance of the state of emergency meeting by the 1st Deputy President. The action of the president according to the NAB is ultra-vires since she acted against the constitutional provision.
According to the background of the matter on the 28th July 2018, the NEC of BOPEU convened a meeting at Cresta Lodge in Gaborone; whereat 19 members of the NEC were present except one
The NEC comprised of 20 members. Consequent to the BOPEU President and Treasurer General being conflicted in issues discussed, they were asked to recuse themselves temporarily from the proceedings. The 1st Deputy President-Bargaining Martin Gabobake chaired the meeting. He later supposedly adjourned the meeting by declaring a state of emergency
Monaiwa is of the view that Gabobake had acted beyond his power and mandate in declaring a state of emergency hence this was unconstitutional. During the meeting, a resolution was passed suspending five (5) National Office Bearers (NOB) being Mogwera, Gabobake, Tlhabologo Galekhutle, Topias Marenga and Kethapeleng Karabo. On the 30th July 2018 Mogwera suspended all NEC members who participated in the meeting that passed the resolution.