Striking Judicial Workers? Ban them, Mr. President, You Can!

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Introduction

The on-going industrial action embarked upon by the Judicial Staff Union (JUSUN), is somewhat controversial. Some have opined that it is ill-timed, given our fragile recovery from the unprecedented Covid-19 pandemic . Given the strategic position of the justice delivery sector, the strike has affected virtually all other parts of the economy, and its final cost is probably unquantifiable. The grouse of JUSUN is well-documented: the alleged unwillingness of the Executive – particularly State Governments – to grant financial autonomy to the Judiciary. This demand might seem reasonable, given that the Court of Appeal and at least two High Courts have affirmed the relevant constitutional provisions on the issue – in favour of the Judiciary.

Regardless of the reasonableness of JUSUN’s demands, however, a note or two, of caution: it appears that the President possesses absolute power to determine the legitimacy, or otherwise, of any trade union. This prerogative is conferred on Mr. President by the Trade Disputes (Essential Services) Act, Cap. T 9, LFN 2010. I believe that this law is clearly anomalous, as it is not only open to abuse, it is also unconstitutional. I will explain anon, but, first, . . .

An Overview of the Act

Section 1 of the Act provides that:

“(1) If the President is satisfied that any trade union or association any of the members of which are employed in any essential service –

(a) is or has been engaged in acts calculated to disrupt the economy or acts calculated to obstruct or disrupt the smooth running of any essential service or

(b) has, where applicable, wilfully failed to comply with the procedure specified in the Trade Disputes Act in relation to reporting and settlement of trade disputes, he may, by order published in the Federal Gazette, proscribe the trade union or association and the proscribed organisation shall, as from the date of the order, cease to exist”

Section 7 of the Act defines “essential service”, inter alia, as:

“(a) The public service of the Federation or of a State;

(b) any service established, provided or maintained by the Government of the Federation or of a State, by a local government council or any municipal or statutory authority, or by private enterprise;

i. for or in connection with the supply of electricity power or water, or of fuel of any kind;

ii. for or in connection with sound broadcasting or postal, telegraphic, cable, wireless or telephonic communications;

iii. for maintaining ports, harbours, docks or aerodromes, or for or in connection with, transportation of persons, goods or livestock by road, rail, sea, river or air;

iv. for, or in connection with the burial of the dead, hospitals, the treatment of the sick, the prevention of disease, sanitation, road-cleaning and the disposal of rubbish;

v. for dealing with outbreaks of fire;

vi. for or in connection with teaching or the provision of educational services at primary, secondary or tertiary institutions;

(c) Service in any capacity in any of the following organisations

(i) the Central Bank of Nigeria;

(ii) the Nigerian Security Printing and Minting Company;

(iii)anybody corporate licensed to carry on banking business under the Banks and other Financial Institutions Act”

It is obvious that the Act is very sweeping, as it captures virtually all trade unions (and, therefore, worker or employer) in every segment of the economy. The only exceptions are members of the Armed Forces and the Police, who have historically been prohibited from unionising (in the interest of national security). It is clear that, to the extent that JUSUN’s membership consists of staff of all courts – both Federal and State – they render an “essential service” within the meaning of that phrase under the Act, and, are, therefore, subject to the Presidential ‘hammer” (i.e., peremptory proscription) under the Act. This is because, by virtue of Section 18(1) of the Interpretation Act, a “public officer” means “a member of the public service of the Federation or of a State as defined in the (1999) Constitution”. Section 318(1) of the Constitution defines “public service of the Federation” as, inter alia, “a member of staff of courts established for the Federation under the Constitution, or by an Act of the National Assembly”. A similar definition applies to “public service of a State”: it includes “staff of courts established for a State under the Constitution, or by a law made by the House of Assembly of the State”. It is obvious that both definitions capture all JUSUN members – as well as of other trade unions, such as the Nigerian Civil Service Union, the Nigerian Union of Journalists, the National Union of Petroleum and Natural Gas Workers (NUPENG), National Union of Road Transport Workers, National Union of Local Government Employees (NULGE), National Union of Teachers, Non-Academic Staff Union of Educational and Associated Institutions, Senior Staff Association of Nigerian Universities (SSANU), Academic Staff Union of Universities (ASUU), Radio, Television and Theatre Workers Union (RATTAWU), Science and Engineering Workers Union, Nigeria Union of Pensioners, National Union of Food, Beverage and Tobacco Employees, National Union of Electricity Workers, National Union of Banks, Insurance and Financial Institutions Employees (NUBIFIE), National Association of Nigerian Nurses and Midwives, Maritime Workers Union, Medical and Health Workers Union, Agricultural and Allied Workers Union of Nigeria, Amalgamated Union of Public Corporations, Civil Service Technical Employees, National Union of Air Transport Employees, National Union of Civil Engineering, Construction, Furniture and Wood Workers, etc.

Is the Act Valid?

I believe that the provisions of the Act are problematic, even on secular, non-legal levels. This is because, as previously stated, the power which it confers on the President is open to abuse, as it is entirely discretionary. Power, it is said, corrupts, and absolute power corrupts absolutely. Beyond this, to the extent that the Act pre-dates the 1999 Constitution, (it was enacted as a decree in 1976 by the then Gen. Olusegun Obasanjo), it can only take effect as an existing law by virtue of Section 315 of the 1999 Constitution if it is not inconsistent with it. Is it? If it is, then it has to be modified by the appropriate authority in order to bring it into conformity with the Constitution, failing which it will be invalid and void to the extent of the inconsistency. See TOGUN v OPUTA (2001) 16 NWLR pt. 140 pg. 579 @ 644.

I humbly posit that the Act is inconsistent with the provisions of Section 36(1)&(2) of the 1999 Constitution which state, inter alia, that “in the determination of his civil rights and obligation, a person shall be entitled to a fair hearing within a reasonable time. . . ” And, that,

“(2) without prejudice to the foregoing provisions of this Section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –

(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and

(b) contains no provision making the determination of the administering authority final and conclusive”

In BAKARE v L.S.C.S.C (1992) 8 NWLR pt. 202 pg. 641, the Supreme Court held that, both provisos in identical provisions in the 1979 Constitution were in the alternative, and not cumulative. In other words, any law which contains either proviso would be valid. I submit that the Trade Disputes Essential Services Act fails this test, because it empowers the President to deprive members of a trade union (such as JUSUN) of their right to freedom of association under Section 40 of the Constitution, without due process. In my opinion, this denial is implicit in the fact that Section 1(1) of the Act confers on the President the absolute discretion to ban a trade union simply “by order published in the Federal Gazette”, and, pronto,“the proscribed organisation shall as from the date of the order, cease to exist”.

The upshot of the foregoing, in my view, is that, not only is the Presidential discretion to proscribe trade unions under the Act absolute, that ban is final and conclusive once it is gazetted, as, from that date, the affected trade union ceases to exist. This submission is without prejudice to the fact that, the right to freedom association is not absolute, as it can admittedly be derogated from under Section 45 of the Constitution, “by any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health”. Is the power which the Act gives to the President to ban trade unions reasonably justifiable in the interest of defence, public safety public order, public morality or public health? That is the question. I doubt it. However, assuming it is, that power ought to be subject to checks and balances, by either the National Assembly or by way of judicial review before it becomes final – something it presently lacks.

Conclusion

The on-going judicial strike ought to focus attention on certain aspects of trade union law, which if not reviewed, could be potent weapons of abuse, oppression and violation of the constitutional guarantee of freedom of association. None of those provisions is more so, than the Trade Disputes (Essential Service) Act. While the Act might have been expedient in a by-gone era (military rule), it is clearly anomalous under our present constitutional democracy, as it is simply wrong for an elected President to have the prerogative of deciding which trade union exists and which does not. That notion negates the ethos of the Constitution which its preamble declares to be freedom, equality and justice.