Dangote Refinery, Unionism and NUPENG

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Two incidents made the Nigerian front burner last week, the refusal of the Senate to allow Senator Natasha Akpoti to resume sitting after serving the unlawful six months suspension meted out to her by the Senate for alleged misconduct, and the ongoing face off between the Nigerian Union of Petroleum and Natural Gas Workers (NUPENG) and Dangote Refinery (DR).

Senator Natasha Akpoti

It is unnecessary for me to repeat myself, and restate the fact that Senator Akpoti’s six months suspension is illegal and unconstitutional, as it is tantamount to suspending her constituency from representation in the Senate, a right conferred on all the citizens of Nigeria pursuant to sections such as 14(2)(a), (c) & 48 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution), and not a privilege that anyone or any authority can take away at will. The Senate is not superior to the Constitution, nor is it superior to the people of Kogi Central who elected Senator Akpoti to represent them – see Section 1(1) & (3) of the Constitution and Speaker, Bauchi State House of Assembly v Rifikatu Samson Danna (2017) 49 W.R.N; Ali Ndume v Senate President & Anor FHC/ABJ/CS/551/2017; Dino Melaye & 4 Ors v The Speaker of the House of Representatives & Ors FHC/ABJ/CS/460/2010. 

The Senate has no power, to stop Senator Akpoti from resuming. I have heard some Lawyers using the Latin maxim ‘sub judice’ to somehow justify the Senate’s refusal to allow Senator Akpoti to resume sitting. I’m not sure that there is a connection. A matter being sub judice simply refers to  filing a multiplicity of actions on the same subject-matter, or the restrictions placed on commenting on a matter when a case is already sub judice, that is, ‘under judgement’ so as not to prejudice the outcome of the case. An attempt to extrapolate this principle to restrictions being placed on actions or inactions, translates to a ‘stay’, that is, maintaining the status quo pending the determination of a matter. It is trite law that, lodging an appeal doesn’t operate as a stay. If the Senate didn’t want Senator Akpoti to resume sitting based on the pending court proceedings, they would have had to make an application to the court for same. They would have been asking the Court of Appeal to reverse itself, and more or less extend the suspension of a Legislator which the Court had previously declared to be unlawful punishment in Speaker, Bauchi State House of Assembly v Rifikatu Samson Danna (Supra). So, the Senate decided to improvise with ‘do-it-yourself’! See Section 17 of the Court of Appeal Act 2004 on an appeal not acting as a stay of execution.

In any event, the illegal six months suspension period has elapsed, and preventing Senator Akpoti from resuming until the Court of Appeal disposes of the matters between the Senate and the Senator, would amount to the Senate purporting to extend her punishment beyond the unlawful six months, thereby delving deeper into illegality and unconstitutionality. This doesn’t augur well for Nigeria’s democracy, and it is shameful, when the Senate, the highest lawmaking body in the land, led by a senior Lawyer, with several Lawyers as members, is reduced to being used as a tool for settling personal scores and humiliating members, and, of course, acting outside the ambits of the law. 

Freedom of Association 

The answer to whether any Trade Union (TU) can insist that workers must join their Union, is No, no matter how laudable the goals of the TU may be. Similarly, the law doesn’t permit an employer to refuse to employ a worker who is a TU member, or make non-membership of a TU a condition for employment, as this would amount to a breach of such worker’s right to freedom of association and from discrimination contrary to Sections 40 & 42(1) of the Constitution respectively. The right of every person to freedom of association, means that it is the individual that has the constitutional right to decide if they want to join a TU or not, and nobody else. In Olaifa v Adeniji & Ors (2017) LPELR-42708(Ca) per Obande Festus Ogbuinya, JCA (as he then was) the Court of Appeal defined a TU thus: “….any combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers….”. 

While NUPENG accuses DR of preventing the Drivers of its new 4,000 CNG Trucks from joining the TU, an allegation which DR has denounced as false, the counter-allegation is that NUPENG is trying to force the Dangote Truck Drivers (DTD) to join their Union. The law doesn’t support either of these two options. However, if the DTD are happy with their employment conditions with DR, and have no interest in joining NUPENG, or have joined another TU instead of NUPENG, or choose to remain independent, it is their prerogative and constitutional right.

Section 12(4) of the TUA: A Reinforcement of Freedom of Association 

It is true that the freedoms guaranteed by Chapter IV of the Constitution are not absolute, as Section 45(1) derogates from them, if there is a law that is reasonably justified in a democratic society that does so (a) in the interest of defence, public safety, public order, public morality or public health; or (b) to protect the rights and freedoms of other persons. See Osakwe & Ors v Registrar of Trade Unions (1985) LPELR-2792(SC) per Andrews Otutu Obaseki, JSC. 

However, instead of derogating from the right to freedom of association in the circumstances of TUs, Section 12(4) of the Trade Unions Act 2004 (TUA) reinforces Section 40 of the Constitution by providing that membership of TUs by employees ‘shall’ be voluntary and no worker ‘shall’ be forced to join a TU or be victimised for refusing to join or remain a member. See Ugwu & Anor v Ararume (2007) LPELR-24345(SC) per Niki Tobi, JSC on the word ‘shall’ being a command. Also see Ibrahim & Ors v Akinrinsola (2022) LPELR-59633(SC) per Helen Moronkeji Ogunwumiju, JSC where the Supreme Court held thus: “The general position of the law is that the word ‘shall’, when used in a statute, rules or enactment is interpreted in its mandatory sense. However, whether the word is used in its mandatory or directory sense, depends on the context in which it is used. The word “shall” can mean “may’ or “must”, where the context so admits”. 

In the context in which it is used in Section 12(4) of the TUA, for it to be consistent with the provision of Section 40 of the Constitution, only the literal interpretation of the statute is required, that is, for freedom of association to be guaranteed, membership of TUs must be voluntary and not mandatory. In Gana v SDP & Ors (2019) LPELR-47153(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC (now CJN), the Supreme Court held thus: “The literal rule of statutory interpretation is that words must be given their plain and ordinary meaning, unless to do so would lead to absurdity or injustice”. In the case of membership of TUs, Section 12(4) of the TUA in its ordinary meaning is not only sensible and reasonable, requiring no further interpretation, it affirms and strengthens Section 40 of the Constitution; also see Section 9(6) of the Labour Act 2004 (LA) and ILO Conventions 87 of 1948 & 98 of 1949 which have been ratified by Nigeria. 

Role of Trade Unions 

TUs are voluntary organisations, and their functions include protection of the rights of workers; securing better working conditions and fair remuneration for their members through collective bargaining; engaging in dispute resolution between employers and workers; and making the workplace more conducive for workers. See Olaifa v Adeniji & Ors (Supra).

What is NUPENG’s Agenda? Interest of Workers or Self-Interest?

And, while over the years, TUs may have achieved some milestones for workers, some are questioning NUPENG’s motives in the DTD matter, that it may not just be about the unionisation of DTD, but about loss of income and trying maintain control of the industry, as any strike by NUPENG usually brings the country to its knees. This incessant use of strikes, and the threat of strikes at the drop of a hat, whether done within the ambits of the law or not, only plunges Nigerians into more suffering, and considering what Nigerians are passing through presently, it is unfair to put them through any more hardship. Obviously, NUPENG may lose this hold or strength if thousands of DTD aren’t in their fold, and, naturally, NUPENG is fighting for its turf, maybe even its relevance and survival.   

DR is said to have bought 4,000 trucks which translates to 4,000 drivers and potentially 4,000 new members for NUPENG. Interestingly, the information about the dues paid by Nigerian TU members isn’t readily available, unlike in the UK where this information is there for all to see; for the different UK TUs such as UNISON, UNITE and GMB, the dues payable depends on whether the member works full or part time, low pay, apprentice, student, retired and so on. Whatever the NUPENG dues may be, an additional 4,000 new members would be a significant boost in membership, position in the industry, bargaining strength and income. 

Dangote Refinery: A Monopoly?  

What NUPENG may be describing as DR being a monopoly, appears to be incorrect. For decades, the Federal Government has failed to get its own refineries up and running; whose fault is that? Again, BUA Group is building a refinery, BUA Refinery and Petrochemicals in Akwa Ibom State with a 200,000 crude oil barrels per day refining capacity, and it is said to be about 10% or so from completion. BUA will also refine petrol, diesel and jet fuel, amongst others. There are also a few small Modular Refineries in Edo, Delta, Bayelsa and Imo. No one is stopping anyone from going into the refinery business, if they choose to. 

While a monopoly usually leads to higher prices for consumers, what DR appears to be trying to do with its 4,000 CNG Trucks, is to reduce fuel prices by means of Vertical Integration, that is, being in better control of the distribution process which is part of the supply chain, to improve it and make it more efficient, thereby leading to lower prices for consumers. Isn’t this good for Nigerians? If the cost of fuel is less, will it not reduce inflation and improve living conditions? 

In fact, DR and the other refineries could also decide to go into retail and have their own petrol stations, as the end part of the supply chain. If NUPENG then decides to go on strike, fuel would still be available for sale at the refineries’ fuel stations – this is vertical integration, where a business operates through the various levels of a supply chain from beginning to the end.

Conclusion 

By giving BUA a licence to build its own refinery, and possibly any other organisation that has the financial muscle to do same, Government has shown that it isn’t encouraging DR to have a monopoly. NUPENG is accusing DR of enjoying a monopoly, but Nigerians can also accuse NUPENG of enjoying a monopoly on the workers in that industry, because when NUPENG calls a strike, all tanker drivers and oil workers down tools and Nigeria grinds to a halt. Just as BUA is set to give DR a run for its money, and anybody else who wants to build a refinery, so also should NUPENG’s monopoly in the unionisation and control of petroleum and natural gas workers be broken. What is good for the goose, is good for the gander.