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

By Abubakar D. Sani, Esq

Introduction

The on-going industrial action embarked upon by the Judicial
Staff Union (JUSUN) is somewhat  controversial. Some have
opined that is ill-timed, given our fragile recovery from the
unprecedented Covid pandemic . Given the strategic position of the
justice delivery sector, the strike has affected virtually other
parts of the economy, and its final cost is probably
unquantifiable. The grouse of JUSUN is well-documented: the alleged
reluctance of the Executive – particularly State Governments – to
grant financial autonomy to the judiciary. This demand might seem
reasonable, given that the Court if 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, willfully
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 organization
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;

1. for or in connection with the supply of electricity power
   or water, or of fuel of any kind;
2. for or in connection with sound broadcasting or postal,
   telegraphic, cable, wireless or telephonic
   communications;

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

1. 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;
2. for dealing with outbreaks of fire;
3. 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 organizations

• the Central Bank of Nigeria;
• the Nigerian Security Printing and Minting
  Company;
• 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 unionizing (in the interest of national security).
Accordingly, the affected trade unions include JUSUN as well as
others 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 vs. 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 Vs 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 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
organization 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 general 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.

Written By Abubakar D. Sani, Esq

By Abubakar D. Sani, Esq

Introduction

The on-going industrial action embarked upon by the Judicial
Staff Union (JUSUN) is somewhat  controversial. Some have
opined that is ill-timed, given our fragile recovery from the
unprecedented Covid pandemic . Given the strategic position of the
justice delivery sector, the strike has affected virtually other
parts of the economy, and its final cost is probably
unquantifiable. The grouse of JUSUN is well-documented: the alleged
reluctance of the Executive – particularly State Governments – to
grant financial autonomy to the judiciary. This demand might seem
reasonable, given that the Court if 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, willfully
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 organization
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;

1. for or in connection with the supply of electricity power
   or water, or of fuel of any kind;
2. for or in connection with sound broadcasting or postal,
   telegraphic, cable, wireless or telephonic
   communications;

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

1. 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;
2. for dealing with outbreaks of fire;
3. 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 organizations

• the Central Bank of Nigeria;
• the Nigerian Security Printing and Minting
  Company;
• 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 unionizing (in the interest of national security).
Accordingly, the affected trade unions include JUSUN as well as
others 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 vs. 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 Vs 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 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
organization 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 general 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.

Written By Abubakar D. Sani, Esq