Sello Motseta
6th January 2021
The Botswana Federation of Trade Union(BFTU) in collaboration with BOLAMA (Botswana Labour Migrants Association) are struggling to convince migrant workers to unionize because many of them are undocumented and fear victimization making it difficult to protect their rights.
“In Botswana the main issue is the protection and promotion of rights of freedom of association for migrant workers in the different sectors. We have a lot more Zimbabweans in Botswana than any other nationality because of the dire economic situation in that country,” said Kitso Phiri, Executive Secretary of the Botswana Mineworkers Union.
He said, “A lot of them are undocumented because many of them entered through ungazetted points of entry. They do not operate in any formal organizational structure. A lot do not join unions because their contracts of employment would not be renewed by employers.”
Phiri maintained that many migrants work odd jobs as casual laborers and a bulk of these migrant workers in Botswana are in agriculture, domestic and construction sectors.
“In the teaching sector there are a lot of migrants workers especially at private institutions. They are mostly vulnerable and do not want to unionize. They fear victimization for being a member of union and many do not have documentation to support their continued stay in Botswana,” said Phiri.
He said, “You will be seen as if you are challenging the establishment.”
Phiri revealed that there is a perception that employee organizations are political. “If you affiliate to a union there is a perception that you are joining party politics,” said Phiri.
The five public sector unions in Botswana under BOFEPUSU have been vocal in criticizing Government and supported opposition candidates and parties openly in 2014 and 2019 general elections.
According to officials from the BFTU and BOLAMA there have been efforts to organize migrants from different nationalities and as well as organizations of Migrants e.g. Malawian Association, Botswana Domestic and Allied Workers Union to form bodies to pursue collective bargaining.
Many Zimbabwean migrants complain of very real fear of them being deported which is not a pleasant experience as the deportee suffers long term psychological effects. They therefore feel uncomfortable participating in activities that bring them into direct conflict with authorities in Botswana.
Some highlighted fact the irregularity of their status in Botswana is due to short limit of days accorded as you enter because many enter Botswana as a valid visitor granted 90 days and eventually going over 90 days while looking for better living opportunities and alternative sources of income.
“You also have a group of migrant workers in Chinese and Indian communities. Those in Indian community are organized within their religious faith structures,” said Phiri.
He said, “Chinese is a very closed community. It was difficult to get access to them and to identify issues
BOLAMA believes migration is very sensitive issue universally. It is not a problem confined to Botswana but acknowledged that various embassies in Botswana are not doing enough to help migrants and believed that the best way to proceed is to engage SADC on policy reform issues.”
Botswana has ratified Convention 87 of the International Labour Organization(ILO) which is one of eight conventions that form the core of international labour law, as interpreted by the Declaration on Fundamental Principles and Rights at Work.
Part 1 consists of ten articles outlining the rights of both worker and employers to “join organizations of their own choosing without previous authorization.”
Rights are also extended to the organizations themselves to draw up rules and constitutions, vote for officers, and organize administrative functions without interference from public authorities. There is also an explicit expectation placed on these organizations. They are required, in the exercise of these rights, to respect the law of the land. In turn, the law of the land, “shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.”
“If you are illegal in Botswana you cannot claim any rights arising out of your employment. You cannot assert right to payment. We are advocating for right of migrant workers to form associations. Societies Act says certain groups can unionize,” said Phiri.
According to union leaders certain provisions within the Act make it impossible to form a meaningful grouping like for example, the Employers and Trade Union Act which disqualifies undocumented migrant workers from forming a union and protecting their rights.
“When an employment grievance is brought by employee it is our belief that there should be protection from labour office. It should be possible for migrant workers to sign contracts and there should be compensation for work done. Justice should not just be done but should be seen to be done,” said Phiri.
But recent local jurisprudence shows the courts are taking a more favourable attitude to protecting the rights of undocumented migrants. Gift Ncube was shot by his employer for demanding his employer pay him P4,500.00 payment as agreed for clearing a 2 ½ hectares of trees on his farm in Dipatheng.
Ncube lost both his arms after being shot 4 times in the arms and being shot in his chest using a shotgun before being left to die on his employers farm. He had to be taken to hospital by Police and sued his former employer Keitumetse Khunou for trying to kill him.
Ncube spent 16 days in hospital in Mahalapye going in and out of consciousness. Once he regained his consciousness he was advised that it was necessary to cut both his arms for his own survival. “I told them to do it quickly because it was painful,” recalled Ncube.
He said, “I cried the whole day and felt that I should have died because I felt I would not be able to live like this. I felt my employer had taken advantage of me because he knew I was an undocumented migrant. With hindsight I feel that my former employer had just intended to use me.”
Ncube who revealed that he entered Botswana in 2004 as a 13 year old through an ungazetted point of entry did not have any papers to support his continued stay in Botswana. He was however confident that he would be able to get redress through courts and pursued legal action against employer.
Ncube was provided with free legal representation by the Botswana Government and was transported to court in Francistown as well as being provided with lodging by Government during his stay for court appearances. This support was withdrawn the day he was expected to hear the judgement in his case.
Despite inexplicably losing his 2018 case at the high court Ncube, solicited public support for funds to take his case to the court of appeal but was approached by former employer and offered a proposal to settle out of court. He accepted out of court settlement of 8 cows, 20 goats and P180,000.00.
He continues high profile public awareness campaign to lobby NGO’s and public to raise P250,000.00 to buy artificial arms and allow him to return to some semblance of normality.
There have been no attempts by authorities in Government to revoke his continued stay in Botswana and he has been able to regularize his stay in Botswana with support of NGO’s like the Ditshwanelo – The Botswana Centre for Human Rights and various well meaning goodwill ambassadors.
