The Case Against Unjust Laws

By Kayode Komolafe

kayode.komolafe@thisdaylive.com

0805 500 1974

By KAYODE KOMOLAFE

Reasoning is central to the understanding of justice even in a world which contains much “unreason”; indeed, it may be particularly important in such a world – Nobel Laureate Amartya Sen in his book, The Idea of Justice

As lawyers converge on Lagos, it may be apposite to draw attention to extant laws that are unjust. Some of these laws hardly feature when law reforms take place. The existence of these oppressive legislations provides the basis for those with authoritarian impulse to invoke the law against those with whom they have a disagreement of views.
The “essential services” provisions of the Trade Disputes Act (as amended) fall into this category of laws.

There have been some illiberal calls to invoke the law because of the recent strikes of university teachers, electricity workers, health workers and others. The workers are considered to be rendering “essential services.” Therefore, they should not be permitted to go on strike.

Certain extreme right-wing ideologues have even recklessly equated the action of workers on strike with the Boko Haram terrorism! They have called on the Attorney-General to prosecute striking workers as “terrorists.”

This reactionary advocacy is made without any sense of social and historical purpose.
The last time the Nigerian state invoked the “essential services,” provisions in the law, the story turned out to be a tragedy. The senior staff union of the defunct National Electric Power Authority (NEPA) went on a three-day strike on October 5, 1988. The issues were similar to the grievances of electricity workers today. They were the perennial issues of inadequate funding of the organisation, lack of safety measures and poor service conditions. Eleven of the striking workers were later arrested and accused of sabotage. The 11 men were first taken before a military tribunal only for the prosecutor to find out that the tribunal could not impose the maximum sentence desired by the state. The helpless workers were later tried by a special tribunal in Jos. The special tribunal sentenced them each to life imprisonment. The life sentence was later reduced by the military government to 10 years. The convicted men were taken to the Kaduna prison. The repressive act of the state provoked outrage both nationally and internationally. The Nigerian labour movement sustained pressures on the military government to free the jailed workers. International labour bodies also mounted a campaign against the injustice done to the workers. Eventually the military government could not ignore the campaigns for the freedom of the electricity senior employees. President Ibrahim Babangida pardoned them and they regained their freedom before the end of their terms.
If a military government could not sustain this repressive application of the law 34 years ago, it would take a fascist state to apply the law the way some anti-labour elements are proposing today.

The relief, however, is that despite the yearnings for the criminalisation of strikes, the Nigerian state today is far from being fascistic.
In fact, it is politically a dangerous proposition that in 2022 workers should be jailed for life because they are protesting poor working conditions. Such a legalised repression of the working people cannot stand.

Contrary to the view that workers’ strikes constitute a crime, the International Labour Organisation (ILO)’s Conventions 87 and 98 adequately protect the rights of workers in the work place. Convention Number 87 protects the right of workers to organise while Convention 98 protects the right of workers to engage in collective bargaining through their unions. Nigeria is a proud signatory to these conventions. The purpose of the freedom implicit in the conventions is to make a distinction between employment and forced labour. While the employer has the power to hire and fire, it would be gross injustice to deny the workers the right to withdraw his labour as a form of protest if the situation arises. The work place is not a jungle where the worker has no right. That is the whole essence of industrial relations as an instrument to smoothen the rough edges of capitalism and to protect workers’ rights.
While some elements would like strikes abolished in Nigeria if they have their way, the global reality is that workers continue to employ the weapon of strikes in the course of trade disputes. Members of the Criminal Bar Association (CBA) in the United Kingdom voted two days ago to embark on an “ indefinite and uninterrupted” strike on September 5 over poor working conditions, pay and inadequate funding of legal aid. The lawyers are asking for 25% pay rise. The strike of the criminal lawyers working on a backlog of 60, 000 cases will affect 70 crown courts in England and Wales. You wonder if the services of these lawyers prosecuting criminal cases for the state are not “essential.”

Meanwhile, in the same UK, dock workers have embarked on an eight-day strike stopping operations at the Britain’s largest container Port of Felixstowe in Suffolk. The strike has been called by the 1,900-strong union, Unite. There are fears that the negative effect of the dockworkers’ strike may be empty shelves at supermarkets soon. This is because of the inevitable disruption of trade and the consequent shortages the action could cause. Other sectors of the British economy are also threatened by the spreading strikes. Already, teachers, railways workers, heahth workers have served notices of work stoppage if their demands for higher wages are not met by their respective employers. Yet no one has called the workers terrorists because they are in the “essential services” sectors. It is generally understood by government, private employers and labour that the difficult situation of the British economy, which is now hugely defined by rising cost of living, is the fuel for the social convulsion manifesting as strikes and other protests. Matters are being treated as trade disputes. The disputes, of course, continue to pose a serious challenge of economic management to the British government.

The idea of “essential services” should not be mystified. The services of the police are doubtless essential. Yet police unions operate in some countries. The South African Policing Union (SAPU) is very active in fighting against socio-economic injustices on behalf of its members. The South African police are protected by the ILO conventions on the right to organise and embark on collective bargaining. The United States of America was the first country in which the police formed unions. Other countries with police unions include Finland, Canada, Australia, Sweden and Ireland.

If the labour relations management is effective and efficient, all issues arising from trade disputes could be handled within the ambit of the existing laws minus the draconian “essential services” provisions which are being invoked to bully workers. The industrial courts are well established to adjudicate on trade disputes. So it is unnecessary for students to be instigated to sue the Academic Staff Union of Universities (ASUU) as it is being done in some quarters. The employers of university teachers could take their case against ASUU to the industrial courts. The labour ministry plays the role of the mediator in this process. .
So far, it is remarkable that the labour ministry under the leadership of Senator Chris Ngige as minister has managed to walk the tightrope of the turbulent industrial relations landscape. There is, of course, room for improvement in the light of the socio-economic crisis that may spur industrial disputes in more sectors.

It is a sad commentary that after 23 years of the experiment with liberal democracy, strikes could be equated with terrorism in Nigeria. It is a socially and politically irresponsible thing to do in the present circumstances of Nigeria. There should be a deeper understanding of the idea of freedom, justice and democracy. Left to the campaigners for this anti-freedom idea, ASUU leaders should be treated in a similar manner to the clamp down of the colonialists on Labour Leader Number One Michael Imoudu and his comrades after the historic 1945 strikes. Imoudu was banished to Auchi.

The simple lesson of history is that the repressive application of unjust laws is not the solution to the problem causing industrial unrests. Instead of brandishing draconian laws, lawyers and others who have voices in the public sphere should call for negotiations on issues in dispute as well as the honest implementation of the agreements reached by all sides to a dispute.

All told, the point at issue is the idea of freedom. The right to vote once in four years is not the only the freedom that people fought for to bring about this dispensation. Socio-economic rights are also important part of the freedom. These rights include the rights guaranteed by the practice of industrial democracy in the work place. You cannot criminalise strikes in a democracy. Such pernicious propositions are falsely purveyed as rule of law. That is the rule of unjust laws.

After all, Hitler’s Germany, Mussolini’s Italy and Apartheid South Africa were said to be run on the basis of the “rule of law.” In retrospect now, it is indisputable that those countries were governed according to the rule of unjust laws during dark days of their histories. There were lawyers, scholars and public intellectuals justifying the injustice at the time.
The draconian decrees of the military regimes in Nigeria were drafted by senior and accomplished lawyers.

Given the anger in the land and the growing intolerance of opposing views, the circulation of illiberal ideas in the public sphere constitutes a real and present danger. These ideas are some extreme right-wing solutions to the socio-economic problems plaguing the land. Such ideas could become a substratum of authoritarian rule even by elected leaders. Come to think of it, leaders of apartheid South Africa were elected just as Adolf Hitler was elected in the Nazi Germany.

That is why reasoning should be brought to bear in public discussions of problems beyond the current exchange of insults and spreading of lies, hatred and prejudice. As Nobelist Amartya Sen quoted above has observed, democracy itself is ultimately public reasoning.
The false equivalence of workers’ strikes and the Boko Haram terrorism is another solid reason for the intensification of the struggle to widen the frontier of freedom by popular-democratic forces.

With the theme of “Bold Transitions” for its 2022 conference, the Nigeria Bar Association (NBA) may wish to have a look at all the unjust laws in the statute book that should be reviewed in the interest of social justice.

QUOTE
The false equivalence of workers’ strikes and Boko Haram terrorism is another solid reason for the intensification of the struggle to widen the frontier of freedom by popular-democratic forces.