How proscription of trade unions was fought under military and civilian regimes in Nigeria by Femi Falana

A fortnight ago, a group asked me to recuse myself from defending the National Union of Petroleum and Gas Workers (NUPENG). Others called me names for pointing out that the Trade Union Act has imposed a duty on employers to accord recognition to all registered trade unions and respect the right of workers to unionise. I decided to ignore the anti-democratic forces as there was no point joining issues with them and their paymasters.

However it is pertinent to state, without any fear of contradiction, that we have, for the past four decades, embarked on legal and political struggles in defence of the fundamental rights of workers, students, teachers, lawyers and doctors to freedom of association. Some of the legal and political campaigns waged by us are set out hereunder:

PURPORTED PROSCRIPTION OF NANS

In 1984, the Muhammadu Buhari military junta proscribed the then vibrant National Association of Nigerian Students (NANS). We advised the leaders of NANS to ignore the proscription as it was not backed by any law. Hence, in defiance of the ban, the NANS President, at the material time, Comrade Lanre Arogundade, declared that “NANS shall continue to operate as it was not established by the Nigerian government”.

Following the anti-SAP protests organised by the NANS in 1989, the Ibrahim Babangida military junta sponsored cultist groups to attack leaders of student unions in all tertiary institutions. The radical ones among the student leaders were either rusticated or dismissed for frivolous reasons. The late Comrade Alao Aka-Bashorun and the late Chief Gani Fawehinmi SAN led us to challenge such authoritarian actions. It is on record that the majority of the cases were won in court. With the assistance of the Academic Staff Union of Universities (ASUU), we ensured that the few student leaders who lost their cases in court completed their university education in other local and foreign universities.

PROSCRIPTION OF NMA AND NARD

In 1985, the Buhari military junta proscribed the Nigerian Medical Association and (NMA) and the National Association of Resident Doctors (NARD) for going on strike to demand increase in the salaries of doctors and improvement in public hospitals. The harassment of the doctors exposed the utter hypocrisy of the junta, which had loudly claimed that Nigerian hospitals had become “consulting clinics” while justifying the coup d’tat that illegally toppled the Shehu Shagari administration. 

Dr. Emmanuel Akpabio and Dr. Beko Ransome-Kuti, the NMA President and the 1st Vice-President, respectively, were detained in the Kirikiri Maximum Correctional Centre under the State Security (Detention of Persons) Decree No 2 of 1984. The Alao Aka-Bashorun Chambers challenged their detention in the Lagos State High Court. It was when the case was pending that both detainees were released after they had been in prison custody for six months without trial. The leaders of the NARD fled the country when the junta wanted to arrest and detain them. 

CRIMINALISATION OF STRIKES 

On October 1988, the senior staff union of the defunct National Electric Power Authority (NEPA) went on a three-day strike to protest 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. They were charged with economic sabotage before a special military tribunal that sat in Jos, Plateau State. 

They pleaded not guilty to the monstrous charges. But they were convicted and sentenced them each to life imprisonment. The life sentence was later reduced by the military government to 10 years. As a result of local and international outrage against the criminalisation of the strike, the military president, General Ibrahim Babangida pardoned the convicts before the end of their prison terms. They regained their freedom with their heads unbowed.

DISSOLUTION OF NLC EXECUTIVE COUNCIL 

In 1988, the leadership of the Nigeria Labour Congress was factionalised in the build-up to its Triennial Conference held at Benin, Edo State along ideological lines. The progressive camp won the election while the faction sponsored by the Ibrahim Babangida military junta lost the election as they were rejected by Nigerian workers. Completely embarrassed, the junta deployed armed troops to occupy the National Secretariat of the NLC in Surulere, Lagos. 

Furthermore, the junta imposed a sole administrator on the NLC. The purpose of the capture of the NLC was to pave way for the sale of public assets (otherwise called privatisation), mass refreshment of workers and commercialisation of social services as part of the conditionalities attached to the Structural Adjustment Programme dictated by the International Monetary Fund and the World Bank. 

The Alao Aka-Bashorun Chambers dragged the junta to the Lagos High Court to justify the dissolution of the NLC. The case was struck out on the ground that the dissolution decree had ousted the jurisdiction of the court. But to the utter dismay of the junta, the NLC mobilized Nigerians to reject the imperialist agenda of underdevelopment. The proscription was, however, lifted in December 1988 when the junta had failed woefully in its dubious objective of capturing the NLC.

IMPOSITION OF CARETAKER COMMITEEE TO MANAGE THE NBA 

In 1993, the junta took over the Nigerian Bar Association and handed it over to the Body of Benchers via Decree No 21 of 1993. Convinced that the illegality would be challenged by the progressive extraction of Nigerian lawyers, the Decree stipulated that “anything done or purported to be done” under it constituted an offence. The penalty for the offence was one- year imprisonment and/or payment of N10,000 fine. 

The Ikeja branch of the Nigerian Bar Association resolved unanimously to challenge the obnoxious Decree.  Our law firm was instructed to handle the case on behalf of all members of the branch. We dared the junta by instituting an action in the Lagos State High Court where we sought to protect the fundamental rights of Nigerian lawyers to freedom of association. The trial judge, Obadina  J. (as he then was), granted our motion for interim injunction against the military dictator and his cohorts. 

Dissatisfied with the ruling, the defendants rushed to the Court of Appeal, where they questioned the competence of the case and the jurisdiction of the court to entertain the case. Upon the request of Chief F.R.A. Williams SAN, who appeared for himself and other appellants, a full panel of the Court of Appeal, was constituted to hear the appeal. In a historic judgment delivered by the Court, our submissions were upheld as the Decree was declared illegal and unconstitutional. See Williams v Akintunde (1995) 3 NWLR (Pt 381) 101.

In another development, the Civil Liberties Organisation (CLO) vs Nigeria, (Suit No101/93) questioned petitioned the African Commission on Human and Peoples Rights in Banjul, The Gambia concerning the legal validity of Legal Practitioners Amendment Decree No 21 of 1993. The federal government could not justify its interference in the internal affairs and management of the NBA. The Commission found that: “The Body of Benchers is dominated by representatives of the government and has wide discretionary powers. This interference with the free association of the Nigerian Bar Association is inconsistent with the preamble of the African Charter in conjunction with UN Basic Principles on the Independence of the Judiciary and thereby constitutes a violation of Article 10 of the African Charter.”

For the above reasons, the African Commission held that there has been a violation of Articles 6, 7, and 10 and directed that the Decree be annulled. Shortly thereafter, the Sani Abacha military junta promulgated the Legal Practitioners Amendment Decree No 21 of 1994 and thereby withdrew from the affairs of the NBA.  It was the only case that a Decree was successfully challenged during the military rule. 

PROSCRIPTION OF ASUU 

In 1992, the ASUU embarked on an industrial action to protest the inadequate funding of public universities. Instead of addressing the complaint, the junta threatened to eject all lecturers from their official quarters in all campuses. We approached the Lagos State High Court, which restrained the junta from forcefully ejecting the lecturers without due process. The junta reacted by promulgating The Teaching E.T.C. (Essential Services) Decree No 30 of 1993, which made  strikes by teachers  a treasonable offence. Once again, the Lagos High Court retrained the junta from implementing the dangerous decree. 

In 1994, the Sani Abacha military junta claimed to have proscribed the ASUU. On the instructions of ASUU, we challenged the illegal prescription. The Enugu judicial division of the Federal High Court declared that the Decree did not proscribe ASUU but merely restricted its activities to individual campuses. It was a loss for the junta as ASUU has always existed in the campuses!

DISSOLUTION OF NLC & PROSCRIPTION OF NUPENG AND PENGASSAN 

In 1994, the Sani Abacha military junta proscribed NUPENG and PENGASSON in 1994 for supporting the struggle for the revalidation of the annulled results of the June 12 1993 and return of democratic rule in Nigeria. The leaders of both unions were detained for 4 years without trial. The General Secretary of NUPENG, Comrade Frank Kokori never fully recovered from the brutality to which he was subjected in prison until he passed on two years ago.

The Gani Fawehinmi Chambers challenged the proscription of both NUPENG and PENGASSON at the Federal High Court. The case was struck out for want of jurisdiction. However, there was a sustained political struggle waged by the victims of the proscriptions and solidarity of progressive forces. The junta equally dissolved the NLC for supporting the democratic struggle. In 1998, the Abdulsalami Abubakar military regime lifted the dissolution of the NLC and repealed the decrees, banning the NMA and NADR, as well as NUPENG and PENGASSAN. 

PROLIFERATION OF TRADE UNIONS 

Following the protests of the NLC against the rash of increase in the prices of petroleum products, the Olusegun Obasanjo administration wanted to proscribe the central labour organisation. Upon realising that its hands were tied by Section 40 of the Constitution which protects the right of workers to freedom of association, the Nigerian State decided to weaken the trade unions by enacting the Trade Union (Amendment) Act 2005.

In a bid to balkanise the central labour organisation, the amendment specifically gives trade unions the right to form, register and belong to federations of trade unions of their choice other than the Nigeria Labour Congress (NLC). In order to weaken the NLC and other trade unions from embarking on strikes the law provides that membership of trade unions is voluntary  and outlines stringent conditions to be met by trade unions and central labour organisations  before calling any strike.

In strict compliance with the new amendment, the Trade Union Congress applied to register as another central labour centre. The application was granted as the federal government believed that it would rival the NLC. However, the NLC and TUC have regularly united and mobilized their affiliates in challenging the exploitation of the Nigerian people by the managers of the neocolonial state and their imperialist masters.

JUDICIAL PANEL TO PROBE STRIKING WORKERS

From May 16-19, 2021, the workers in Kaduna State embarked on strike for improved conditions of service. For having the temerity to match with the striking workers, former NLC President, Comrade Wabba Ayuba,  was declared wanted by the then Governor of Kaduna State, Malam  Nasiru El-Rufai. The governor’s fascist reaction to the strike was ignored. In a desperate bid to ban strikes in state, Mr. El-Rufai instituted a judicial panel of inquiry with far reaching powers.

We dragged the Governor to the National Industrial Court to justify the setting up of the judicial commission of inquiry. The presiding judge, Justice Osatohanmwen Obaseki-Osaghae, held that the governor lacked the power to set up the commission of Inquiry to investigate the strike of May 16 to May 19, 2021 and the activities that emanated from it. The court stated that although the governor could set up a Commission of Inquiry, but not the type that bordered on labour dispute.

The court also held that the governor who constituted the Commission, appointed its members, also directed that its findings and recommendations be sent to him. The Court declared the Judicial Commission of Inquiry unconstitutional, null, void and of no effect whatsoever. The appeal filed against the judgment has since been abandoned by the Kaduna State Government.

BALKANISATION OF ASUU

Following the industrial action embarked upon by the ASUU in 2022, the Muhammadu Buhari administration toyed with the idea of either prescribing the trade union or suspending its activities. However, on account of the illegality of the plan, the federal government shelved it but opted to balkanise the ASUU.

Hence, the National Association of Medical and Dental Academics (NAMDA) and the Congress of Nigerian University Academics (CONUA) were accorded recognition and registered as trade unions. 

To the utter embarrassment of the federal government, NAMDA and CONUA were unable to call off the strike. Even though the registration of CONUA and NAMDA was challenged by ASUU at the National Industrial Court, our submissions were rejected on the ground that the registration of both trade unions is justified under the ILO Conventions 87 and 98 on freedom ILO Convention 87 (Freedom of Association and Protection of the Right to Organise Convention, 1948) and Convention 98 (Right to Organise and Collective Bargaining Convention, 1949).

SUSPENSION OF NURTW

On May 31, 2019, Governor Seyi Makinde proscribed the activities of the National Union of Road Transport Workers (NURTW) across Oyo State, citing breaches of peace and directing the government’s immediate takeover of all motor parks in the state. To challenge the suspension categorically, the union approached the National Industrial Court (NIC) for legal redress. 

The NIC dismissed the suit on March 23, 2022, holding that it lacked merit. But, in a judgment delivered last week in the appeal in the case, the Court of Appeal overturned the 2019 suspension of the National Union of Road Transport Workers in Oyo State, declaring the action of Governor Seyi Makinde as unlawful. The three-man panel led by Justice Kenneth Amadi ruled that the Oyo State Government failed to provide evidence of any breach of peace or public order that would justify the suspension of the union’s activities. 

In his concurring judgment, Justice Biobele Georgewill stated that while the state government has the authority to maintain law and order, it must do so within the confines of the law as it cannot be done  by resorting to “another form of illegality by the state government going outside the lawful channel to use its whims and caprices, by suspending the activities of the appellant, since the state government does not have any such powers outside of laws of the land.”

CONLUSION 

In conclusion, NUPENG and PENGASSAN deserve commendation for winning the battle for the unionisation of junior and senior employees in the Dangote Refinery. If both unions had been defeated in the battle, other employers of labour would have been encouraged to ban workers from exercising their freedom to unionise in line with the Nigerian Constitution, Trade Union Act, African Charter on Human and Peoples Rights and Conventions 78 and 98 of the International Labour Organisation ratified by Nigeria. 

Whilst the Nigeria Labour Congress and Trade Union Congress are registered central labour centres in Nigeria, the National Employers Consultative Association (NECA) is the umbrella organization for employers in the organized private sector. Its main objective is to represent businesses in socio-economic and labour policy matters. It is pertinent to note that the NECA has been in existence since 1957. The petit bourgeois elements campaigning for the abolition of trade unions have never deemed it fit to demand the proscription of NECA.

We have, therefore, resolved to join other democratic forces to prevent the desperate bid of the bourgeoisie and other reactionary forces to liquidate NUPENG and PENGASSAN. No amount of cheap blackmail will deter us from joining issues with those who are bent on denying Nigerian workers their rights guaranteed by the constitution and trade union laws in the land and the conventions of the International Labour Organisation (ILO).  Let the agents of fascism who recently asked President Bola  Tinubu  to suspend the Constitution and impose Martial Law to facilitate the proscription of both trade unions know that they are still living mentally  in the dark days  of military autocracy, which has since been consigned  to the dustbin of history in Nigeria.

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