Rari, who is accused by four members Tshetsana Motsatsing, Namwaka Shamukuni, Carthage Kenosi and Matthews Masole of altering the union’s constitution for his own benefit, says the members knew the alleged acts for a period of eight years but did nothing. In his response to the members’ demand to have his post declared vacant by the court, the SG said the writ of summons filed against him, the union and its president Winston Radikolo be set aside because it was time barred and an irregular proceeding.
He explained that according to the rules of court, review proceedings are to be instituted within four months of the decision that was complained of. “The essence of the operative respondents’ action is to have an amendment of the constitution invalidated and set aside. The members’ action also seeks to have my election set aside and a fresh election held. The amendment of a constitution of a trade union constitutes administrative action, which ought to be challenged by a way of review proceedings,” he said.
Rari said the election of a trade union constituted an administrative action, which have to be challenged by a way of judicial review pointing out that since the members’ compliant in respect of the constitution was that it was discovered in 2013 that he had made unauthorised alterations to the constitution and had it registered, both amendments and their registration are administrative acts. He emphasised that the respondents knew the alleged acts that are said to have been unconstitutional for a period of eight years including at the time of the congress and yet no legal proceedings were instituted to have the amendments set aside or to have his candidature invalided.
“The action to have the amendments and their registration set aside is undoubtedly time barred. The members require leave of court prior to proceedings with any action that seeks to invalidate amendments to the constitution and their registration. The election, which is sought to be set aside, took place in April 2021. The respondents instituted proceedings more than seven months after my election. The action is therefore, time- barred as relates to the challenge to my election as SG,” argued Rari.
Responding to Rari’s take, the members denied that their action was irregular, submitting that the amendment of the constitution does not constitute administrative action as the administrative action was taken by the government or public bodies and not voluntary associations such as trade unions in the exercise of public power. “The constitution of the union operates as a contract between the members and that's where there is a breach of such constitution, such breach can be challenged by other means other than review, if at all review proceedings are competent. A declaration of rights where there is a breach of the constitution is a competent relief. We have adopted the right procedure. As members we are entitled to choose how we want to conduct our case,” they said.
The members argued that the action was not time barred, as it was not a review, explaining that they are simply seeking compliance with the constitution and regularisation of all conduct, which offends the constitution. The quartet accused Rari and company of raising a technicality in their papers as a deliberate ploy to run away from the real issues, that was whether or not he should still be occupying the position of secretary-general and for him to clarify how the unconstitutional and illegal amendment occurred.
The dispute is a result of members allegedly wanting Rari out after accusing him of altering the union constitution. They took him, the union president Radikolo, BOSETU and the Registrar of Trade Unions to court seeking a declaratory order among others that their actions were fraudulent and therefore unlawful. In their court papers before Justice Chris Gabanagae of Gaborone High Court, the quartet’s particular of claim is that in 2008 during the union’s congress there was a resolution that the term of office of SG should be restricted to two terms.
They explained that following that, in 2013 the union called a special congress for constitutional amendments and review of approved ones. The members are now accusing the SG of deliberately and intentionally altering the constitution without authority to benefit himself.
