FGN v  ASUU: In the Context of International Labour Standards, Best Practices, Relevant Treaties, Protocols and Conventions

This article by Olumide Obayemi uses Section 254C(2) of the 1999 Constitution to critique the decision in FGN v ASUU Suit No: NICN/ABJ/270/2022, especially in the context of International Labour Standards, Best Practices, Relevant Treaties, Protocols and Conventions 

Right to Strike

As stated in the International Labour Review, Vol. 137 (1998) No. 4, the principles of the Committee on Freedom of Association and of the Committee of Experts concerning the right to strike have been set forth. This right has been affirmed in the 1957 “Resolution Concerning the Abolition of Anti-Trade Union Legislation in the States Members of the International Labour Organisation” and the 1970 “Resolution concerning Trade Union Rights and Their Relation to Civil Liberties”, as well as in numerous Resolutions of the ILO’s regional conferences and industrial committees, and by other international bodies

The right to strike constitutes a fundamental right of workers and of their organisations, in so far as it is utilised as a means of defending their economic interests. The right to strike is a legitimate means of defending their economic and social interests. The right to strike is one of the essential means, through which workers and their organisations may promote and defend their economic and social interests.

Thus, a strike action was embarked upon by Academic Staff Union of Universities (ASUU) on 14th February, 2022, and the Federal Government (FGN) has been unable to resolve the issues amicably. The Minister, Federal Ministry of Labour and Employment, acting further to the powers conferred on him by Section 17 of the Trade Disputes Act, Cap T8, Laws of the Federation of Nigeria (LFN), forwarded to the National Industrial Court for its determination, a Referral Instrument in respect of the Trade Dispute between FGN and ASUU. 

Litigation 

This was followed by Federal Government of Nigeria & Minister of Education v Academic Staff Union of Universities (ASUU) Suit No: NICN/ABJ/270/2022 (FGN v ASUU), wherein FGN had sought several reliefs and requested for an accelerated hearing/determination of the case. Subsequently, FGN filed a Motion on Notice for Interlocutory Injunction, brought pursuant to Section 69(a)&(b) and Section 254C(1)(C) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Section 7(1)(b) of the National Industrial Court Act, 2006; Order 17 Rule (1), (13) and Order 22 Rule 1(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. Subsequent to the above, the Applicants filed a Motion on Notice for Interlocutory Injunction, brought pursuant to Section 69(a) and (b) and Section 254C(1)(C) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Section 7(1)(b) of the National Industrial Court Act, 2006; Order 17 Rule (1), (13) and Order 22 Rule 1(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. By the said application, the Applicants sought an Interlocutory Injunction restraining the Respondent and their agents, privies and agents from continuing with the indefinite strike action pending the determination of the suit/referral to the court.

On Wednesday, 21st September, 2022, Honourable Justice P.I. Hamman, of the National Industrial Court of Nigeria (NICN), holden at Abuja, in FGN v ASUU, issued an Order of Interlocutory Injunction restraining ASUU and their agents or privies from taking further steps in doing any act or otherwise continuing with the indefinite strike or any strike action pending the hearing and determination of the referral to the court. The NICN held that Section 18 of the Trade Dispute Act prohibits a worker from taking part in a strike in connection to a trade dispute, where the dispute has subsequently been referred to the NICN under Section 14(1) or 17 of the Act. The NICN construed the word “shall” used in the referenced provision, to mean that: “Section 18(1)(e) of the Trade Disputes Act connotes a mandatory obligation or duty on the part of employers and employees not to declare or partake in any strike when a dispute has been referred to the court, and where such lock-out or strike is ongoing at the time of the Referral, it shall cease or abate pending the determination of the suit.”. 

Interpretation of the Relevant Constitutional Provisions & Judicial Decisions

The NICN was originally established in 1976 pursuant to the Trade Disputes Decree No. 7, which later became the Trade Disputes Act (TDA) (Chapter 423) Laws of the Federation of Nigeria (LFN) of 1990. Currently, Section 254C of the 1999 Constitution vests jurisdiction on the NICN. However, the NICN has exercised its jurisdiction to apply international labour standards and best practices, as well as the relevant treaties, protocols and conventions when deciding on labour, employment and trade disputes. Prior to the 2010 Third Alteration Act, Section 12 of the 1999 Constitution requires that treaties between Nigeria and other countries must be ratified and re-enacted by the National Assembly to have force of law, that is, to be ‘domesticated’ in Nigeria. Currently, Section 254C(2) of the 1999 Constitution legally empowers  the NICN to exercise jurisdiction on matters relating to the application of any international conventions, treaties or protocols relating to labour and employment that have been ratified by Nigeria, notwithstanding anything to the contrary in the Constitution.

The effect of Section 254C(2) of the 1999 Constitution is that in matters relating to labour and employment, the domestication requirement is expunged and no longer applies. All that is required for any such treaty, convention or protocol to have legal effect in Nigeria, is for Nigeria to have ratified it. Therefore, the NICN has relied on Section 254C(2) jurisdiction to apply the provisions of treaties, conventions and protocols relating to labour and employment, including the International Labour Organisation (ILO) jurisprudence that has developed from such instruments. Nigerian Lawyers like Uzoma Azikiwe and Festus Onyia have argued that the NICN has jurisdiction in matters relating to unfair labour practices or international best practices in labour, employment and industrial relations or international labour standards. 

In Maduka v Microsoft Nigeria, 19 December 2013, Case No. NICN/LA/492/2012, the NICN applied the United Nations Convention on the Elimination of All Forms of Discrimination Against Women and the ILO Discrimination (Employment and Occupation) Convention, that have been ratified in Nigeria, in deciding that the applicant’s rights against discrimination had been violated. Further, in Duru v Skye Bank and Aloysius v Diamond Bank (2015) 59 N.L.L.R (Pt. 207) 680, the NICN also relied on the ILO’s Termination of Employment Convention of 1982 to decide that employment must not be terminated unless there is a valid reason connected to the employee’s capacity or conduct, or based on the operational requirements of the undertaking, establishment or service. The need to base termination of employment on a valid reason is the global position on employment relationship, and therefore, the current international labour standard and best practice. While the Convention has not been ratified by Nigeria, the NICN relied on its Section 254C(2) jurisdiction in relation to international best practices in labour, employment and industrial relation matters and application or interpretation of international labour standards pursuant to Section 254C(1)(f)&(h) of the 1999 Constitution as the basis to apply the Convention. The NICN rejected the harsh common law position that allows an employer to terminate employment for good, bad or even for no reasons at all. 

Also, in Aero Contractors Co. of Nigeria v National Association of Aircraft Pilots and Engineers, 4 February, 2014, Case No. NICN/LA/120/2013, the NICN arrived at its decision by noting that Nigeria has ratified the Freedom of Association and Protection of the Right to Organise Convention 1948 and the Right to Organise and Collective Bargaining Conventions 1949 and that it had the jurisdiction to apply those Conventions, including the jurisprudence that the ILO has developed around them. Thus, the NICN relied on the publications of the ILO’s Committee of Experts. The NICN arrived at the decision, despite the fact that essential services as defined in Section 48 of the TDA includes services for maintenance of aerodromes or in connection therewith.

Non-Application of International Best Practices by NICN

Let us see how international best practices should have applied in FGN v ASUU. The September 21, 2022 Order failed to note that a general prohibition of strikes can only be justified in the event of an acute national emergency and for a limited period of time, as was held in ILO Case No 2426 (Burundi) – Complaint date: 16-MAY-05 and ILO Case No 3001 (Bolivia (Plurinational State of)) – Complaint date: 22-NOV-12. Justice Hamman did not state any acute national emergency, and did not provide for a limited period of time for his Order prohibiting ASUU strike..

Also, international best practices require that responsibility for suspending a strike on the grounds of national security or public health should not lie with the Government, but with an independent body which has the confidence of all parties concerned. ILO Case No 1865(Republic of Korea) – Complaint date: 14-DEC-95 Justice Hamman should have composed an independent body with the confidence of ASUU and FGN.

The right to strike can be restricted or even prohibited in the public service or in essential services only where a strike (i) could cause serious hardship to the national community and (ii) provided that the limitations are accompanied by certain compensatory guarantees. ILO Case No 2838 (Greece) – Complaint date: 10-FEB-11. However, Justice Hamman’s order and the limitations on ASUU’s striking rights are not accompanied by certain compensatory guarantees.

Conclusion 

Based on Section 254C(2) of the 1999 Constitution, NICN’s  September 21, 2022 decision in the FGN v ASUU case, is erroneous in substantive law.

Olumide K. Obayemi Ph.D, Senior Lecturer, Commercial & Industrial Law Department, University of Lagos