The Right to Strike in Nigeria
By
Femi Aborisade
Department
of Business Administration & Management Studies
The
Polytechnic, Ibadan
&
Centre
for Labour Studies (CLS)
Introduction
The right to strike is perhaps next in importance to the right to
life. The right to strike influences the balance of relations, not only between
employers and employees and their organizations in the various sectors of the
economy but also the capacity of the civil society, which includes trade
unions, in acting as a counter power to likely excesses that the state may
display in the governance process. Thus, the right to strike determines not
just the prospects for enjoying improvements in working and living conditions
of employees but it is also a precondition for the sustenance of society on a
just and democratic basis and enjoyment of other fundamental socio-economic and
political rights. Despite the strategic nexus between the right to strike and
the attainment of a just society, the right to strike tends to be restricted in
labour laws and practically suppressed in the course of actual strike actions
in Nigeria
- Theoretical Framework
- Legal Framework on the Right to Strike
in
- Some Indices of Practical Constraints
on the Right to Strike in
- The ILO Principles on the Right to Strike
- Shortcomings in the ILO Principles on the Right to Strike
- Conclusion
THEORETICAL FRAMEWORK
Source of Disputes and Strikes
The theoretical framework addresses three interrelated concerns –
the source of disputes and strikes, conceptual distinction between disputes and
strikes and types/forms of disputes and strikes.
There are various theoretical constructs seeking to explain the
source of industrial conflicts and strikes. However, this paper relies on the
Marxian viewpoint. Marxists maintain that the capitalist mode of production,
the generation of surplus value and the increasing rate of exploitation
inherently breed conflicts and strikes and divide modern society into two broad
classes. As Marx and Engels (1967:41) put it in the Communist Manifesto ‘society as a whole is more and more splitting
up into two great hostile camps, into two great classes directly facing each
other – bourgeoisie and the proletariat’. Marx and Engels (1967: 96) explain
further the basis for the division of society into two hostile camps:
The essential condition for the existence and sway of
the bourgeois class is the formation and augmentation of capital; the condition
for capital is wage labour. Wage labour rests exclusively on competition
between the labourers. The advance of industry, whose involuntary promoter is
the bourgeoisie, replaces the isolation of the labourers, due to competition,
by their revolutionary combination, due to association. The development of
modern industry, therefore, cuts from under its feet the very foundation on
which the bourgeoisie produces and appropriates products. What the bourgeoisie
therefore produces, above all, are its own grave-diggers. Its fall and the
victory of the proletariat are equally inevitable
Though in a derisive manner, Adam Smith (1948) had earlier explained
the inevitability of the process of ‘workmen’ organizing against ‘masters’:
Masters are always and everywhere in a sort of tacit,
but constant and uniform, combination, not to raise the wages of labour above
their actual rate… Such combinations, however, are frequently resisted by a
contrary defensive combination of the workmen who sometimes, too, without any
provocation of this kind, combine of their own accord to raise the price of
their labour. Their usual pretences are sometimes the high price of provisions,
sometimes the great profit which their masters make by their work. But whether
their combinations be offensive or defensive, they are always abundantly heard
of
Disputes and Strikes Distinguished
Davar (1976:305) defines ‘industrial
dispute’ as a real and substantial difference, between employees and employers,
which has some element of persistency and continuity until it is resolved, and
if not resolved is likely to endanger industrial peace of the undertaking or
the community. The ILO Committee of Experts maintains that any work stoppage,
however brief and limited, may generally be considered as a strike. (ILO,
1994a, paras. 173 and 174). In other words, strike declaration is one of the
ways by which grievances or disputes are expressed.
Disputes are of two major types –
disputes of interest and disputes of rights (Obisi, 1996:70). Conflicts or
disputes of interest refer to situations when workers and management fail to
reach an agreement in any collective bargaining process on either working
conditions or renewal of previous agreements. On the other hand, conflicts or disputes
of rights capture grievances or disputes that may arise as a result of
differences in the interpretation of an existing agreement.
Strikes too have been categorized into
various classes by various authors. Tata contends that strikes can be divided
into the following four broad classes: political strikes, union rivalry
strikes, sympathy strikes and economic strikes (cited in Davar, 1976: 299). The ILO Committee of Experts classifies
strikes based on the nature of demands or objectives of strikers and therefore
presents the following categorization of strikes - occupational strikes (seeking
to guarantee or improve workers’ working or living conditions), trade union
(seeking to guarantee or develop the rights of trade union organizations and
their leaders), sympathy strikes (where workers come out in support of another
strike, [ILO (Committee of Experts), 1983, para. 217], general and political
strikes (cited in Gernigon, Odero, and Guido, 2000). While the broad types of
strikes appear limited, the forms in which strikes might take are not only numerous,
they are indeed ubiquitous. They could include high labour turn over, sick
leave strike, go-slow or restriction of output, high accident rates, sabotage,
high rate of absenteeism, mass meetings, rallies, mass protests, picketing, and
lock-out of workers by the employers. Indeed, as Verma (1987:412) explains,
the
relationship between labour and management may lie at any point on the
continuum of cooperation to conflict. Thus, both these extreme points on the
continuum exist in an organization, an industry, or a society. But at any given
point in time, there may be a predominance of one element over the other.
THE LEGAL FRAMEWORK ON THE RIGHT TO STRIKE IN NIGERIA
The major relevant Nigerian legislations covering the right to
strike in Nigeria
Section 30 sub-section (6) of the Trade Unions Act, as amended, outlaws strikes and lock-outs unless
they occur in the following four major situations – strikes in non-essential
services sectors, strikes over dispute of right, strikes occurring after having
exhausted the provisions of the Trade Disputes Act, and provided that a simple
majority of all registered members voted to go on strike. The Act defines
‘disputes of right’ to mean any labour dispute arising from the
negotiation, application, interpretation or implementation of a contract of
employment or collective agreement or any other enactment or law governing matters
relating to terms and conditions of employment.
Section 30(6) of the Trade Unions Act states:
“(6) No person, trade union or employer shall take part in a strike
or lock out or engage in any conduct in contemplation or furtherance of a
strike or lock out unless:
(a) the person, trade union or employer is not engaged in the
provision of essential services;
(b) the strike or lock out concerns a labour dispute that
constitutes a dispute of right;
(c) the strike or lock out concerns a dispute arising from a
collective and fundamental breach of contract of employment or collective
agreement on the part of the employee, trade union or employer;
(d) the provisions for arbitration in the Trade Disputes Act Cap.
432, Laws of the Federation of Nigeria, 1990 have first been complied with; and
(e) in the case of an employee or a trade union, a ballot has been
conducted in accordance with the rules and constitution of the trade union at
which a simple majority of all registered members voted to go on strike.
The following deduction, which impinges on the right to strike, could
be made from the provision of Section 30(6)(a) of the Trade Unions Act, quoted
above - strike is outlawed in the essential services even where right dispute or fundamental breach of contract of
employment or collective agreement is involved, whether or not a majority of
the workers voted to embark on strike and regardless of the fact that the trade
union might have complied with the provisions of the Trade Disputes Act.
It is also important to note that the categorization of enterprises
as ‘essential service’ almost embraces virtually all sectors of the economy.
The Trade Disputes (Essential Services) Act in Section 9 (Interpretation) lists
the following establishments as essential services:
- The public service of the Federation or of a State which shall for the purposes of this Decree include service, in a civil capacity, of persons employed in the armed forces of the Federation or any part thereof, and also, of persons employed in an industry or undertaking (corporate or incorporate) which deals or is connected with the manufacture or production of materials for use in the armed forces of the Federation or any part thereof;
- Any service established or maintained by the Government of the Federation or of a State, by a local government council, a town 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, or any of the following public health matters, namely, sanitation,
road-cleaning and the disposal of night-soil and rubbish;
(v)
for dealing with outbreak of
fire;
(vi)
for, or in connection with, teaching
or provision of educational services at primary, secondary or tertiary
institutions;
- Service in any capacity in any of the following organisations –
the Central Bank of Nigeria
the Nigeria
any body corporate licensed to carry on banking business
under the Banking Decree Act.
The provision concerning item (vi) above was included by the Teaching,
ETC (Essential Services) Decree (now Act) No 30 of 4th May 1993,
which amended CAP 433, LFN, 1990. The said Teaching (Essential Services) Act
decreed teaching service to be an essential service where no staff, teaching or
non-teaching, can embark on any form of strike [S.2(1)] and where a strike
occurs and goes on for more than one week, the striking staff shall be deemed
to have resigned their appointment. [S.2 (2) of the Teaching, ETC (Essential
Services) Act].
The Teaching, ETC (Essential Services) Decree (now Act) No 30 of 4th
May 1993 was further amended by the Teaching, ETC (Essential Services)
(Amendment) Decree (now Act) No 44 of 1993 by inserting new subsections (3),
(4) and (5) in Section 2, with the following implications:
A member of staff in the teaching service who embarks on strike for
over one week shall be liable to vacate official accommodation that may have
been provided, if any [2(3)]. Without prejudice to the provisions of the Trade
Disputes (Essential Services) Act, CAP 433, any official or member of an
institution who embarks on strike is guilty of an offence and upon conviction
is liable to a maximum of two years imprisonment [Section 2(4)]. An offence
committed under [2(4)] is triable in the Federal High Court.
The Teaching, ETC (Essential Services) (Amendment) Act No 44 of 1993
also substituted a new Section 3 for the Teaching, ETC (Essential Services) Act
No 30 of 4th May 1993 to the effect that notwithstanding any thing
to the contrary in the Constitution, as amended, the African Charter on Human
and Peoples Rights (Ratification and Enforcement) Act or any other enactment,
no proceeding shall lie or be instituted in any court for or on account of any
act, matter or thing done or purported to be done in respect of the Act[Section
3(1)]. Accordingly, if any proceeding has been instituted on or before or is
instituted after the commencement of the Act, such proceeding shall abate, be
discharged and made void [3(2)].
Though section 30 (6) (d)
of the Trade Unions (Amendment) Act 2005 appears to tolerate strike action in
non-essential sectors if majority of the workers support the strike action, in reality, there is a counter provision in the Trade Disputes Act, which does not permit strike before
exhausting the procedure and no strike is allowed after an award has been made,
whether the award is acceptable to the workers or not. The Trade Disputes
Act No. 7 of 1976, CAP 432, LFN, 1990 prohibits strikes and lockouts before the
National Industrial Court (NIC) makes its award (S.17). Yet, the award of the
NIC shall be final and shall be binding on the employers and workers to whom it
applies (S.13). Indeed, the award of the N.I.C is unchallengeable; no appeal
against NIC award can be taken to any other court [S. 20(3)] and no strike can
be declared to challenge it. The statutory procedure for settlement of trade
disputes therefore aims at effectively banning strikes, contrary to the
provisions of Part III, Paragraph 7 of
I.L.O. Convention No 151 of 1957, which provides that ‘No provision of this
Convention may be interpreted as limiting in any way whatsoever, the right to
strike ‘.
The Act criminalizes strike action by prescribing that any person,
trade union or employer who contravenes any of the provisions of the Act, which
prohibits strike action commits an offence and is liable on conviction to a
fine of N10,000 or six months imprisonment or to both the fine and
imprisonment.
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Section 7 of the Trade Unions Act prescribes that the
provisions for arbitration in the Trade Disputes Act Cap. 432, Laws of the
Federation of Nigeria, 1990 shall apply in all disputes affecting the
provision of essential services and the determination of the
Section 1 of the Trade Disputes (Essential Services)
Act, CAP 433 LFN, 1990 empowers the President to proscribe trade unions or
associations in essential services that may embark on strike.
Section 3 of the Trade Disputes (Essential Services) Act, CAP 433,
LFN, 1990 also provides that no other trade union consisting of the same
members as those of the proscribed union or having the same or substantially
the same objectives as those of the proscribed union shall be registered
until a period of not less than six months has lapsed since the proscription
date. Section 4 bans any official of a proscribed organisation from being an
official of any trade union or association, any of the members of which are
employed in any essential services. The penalty for contravention, upon
conviction, is imprisonment for a term not exceeding five years [Section
4(2)].
If the Inspector General of Police or the Chief of General Staff
is satisfied that an official of a proscribed union has continued to act in
ways to obstruct the smooth running of any essential services, an order shall
be issued for the detention of such a person [Section 5 of the Trade Disputes
(Essential Services) Act, CAP 433, LFN, 1990].
Section 8(1) of the Trade Disputes (Essential Services) Act, CAP
433, LFN, 1990 ousts the jurisdiction of the court by providing that
no suit or other legal proceedings shall lie against any person for anything
done in pursuance of the Act. Section 8(2)(a) suspends the Constitution and
whether any provision of the Constitution shall be contravened in pursuance
of the Act is not to be inquired into in any court of law. Section 8(2)(b)
provides that a detained person cannot enjoy the benefit of the writ of habeas
corpus ad subjiciendum, by which a legal process may be set
in motion for the court to order the physical production, in court, of a
detainee who is alleged of being wrongfully detained.
The above provisions of the Trade Disputes, Essential Services Act
are no doubt absolutist, authoritarian and draconian. They are unquestionably
incompatible with the tenets of a democratic society. The Right to personal
liberty, save in execution of a court order, is guaranteed under section 35
of the nation’s Constitution. Right of fair hearing is guaranteed in Section
36 of the Constitution. Access to court in the determination of rights is
guaranteed under Sections 6 and 17(2) of the 1999 Constitution. Similarly,
Articles 9 and 10 of the Universal Declaration of Human Rights provide
against arbitrary arrest and detention and guarantee fair and public hearing
by an independent and impartial tribunal, in the determination of rights and
obligations arising from any criminal charge, respectively. In the same vein,
Article 6 of the African Charter on Human and Peoples’ Rights provides
guarantees against arbitrary arrest and detention while Article 7 protects
the right of fair hearing, presumption of innocence until the contrary is
proved by a competent court or tribunal and the right of defense, including
defense by a counsel freely chosen by an accused person.
The Right to Picketing
Curtailed
The amendment of Section 42 of the Principal Act by the Trade
Unions (Amendment) Act 2005 seeks to curtail the right of picketing. The
Trade Unions Act now provides as follows:
“(1)(A) No person shall subject any other person to any kind of
constraint or restriction of his personal freedom in the course of
persuasion;
(1)(B) No trade union or registered Federation of Trade Unions or
any member thereof shall in the course of any strike action compel any person
who is not a member of its union to join any strike or in any manner
whatsoever, prevent aircrafts from flying or obstruct public highways,
institutions or premises of any kind for the purposes of giving effect to the
strike.”
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The above provisions in section
42(1)(A) and (B) breach the right of picketing guaranteed under the previous
Sections 42 and 43, which was even safeguarded under military dictatorship.
The protection of the right to picket in the Act before the 2005 amendment simply
meant a safeguard of the democratic principle of the minority in an
organisation having a right to a say while the majority have their way. In
other words, it is a democratic practice for the minority to abide by the
decision supported by the majority; otherwise appropriate social sanctions
are usually adopted as penalties on those who go against organizational
decision, if they still intend to retain membership of the organisation.
Therefore, it is a democratic practice for unions to enforce the decision for
a strike action for example, against strikebreakers. The provision is
therefore undemocratic.
Section 43 of the Trade Unions
Act (before the 2005 amendment) provided that the following acts done in
furtherance of a trade dispute shall not be actionable in tort – the listed
acts are acts meant to induce other persons to break a contract of employment
or which interfere in the trade, business or employment of some other person
or the right to dispose of his capital or labour as he wishes; or that threaten
the breaking of a contract of employment (whether one in which he is a party
or not); or that consist in threatening to induce some other person to break
a contract of employment to which that other person is a party.
The amendments seek to take away
the right of picketing specifically provided in the previous Section 42(1) of
the Trade Unions Act, which provides that it shall be lawful for one or more
persons, acting on their own behalf or on behalf of a trade union to carry
out peaceful picketing meant to peacefully obtaining or communicating
information or peacefully persuading any person to work or not to work.
Section 42 subsection (2) provides that nothing done in section 42
subsection(1) above shall constitute an offence under any law in force in
Nigeria, and in particular, shall not constitute an offence under section 366
of the Criminal Code or any corresponding enactment in force in any part of
Nigeria.
Some Indices of Practical
Constraints on the Right to Strike in
Some of the practical constraints on the right to strike in
The Use of the Judiciary
to Undermine Strikes, in Defense of Profit
Though there are exceptions, the Nigerian judiciary has
predominantly turned itself into a ready tool of the executive arm of
government to scuttle the expression of the right of the working class to
strike. A new trend has emerged in which governments, Federal and State,
either run to the industrial courts or the High Courts, rather than the
Industrial courts, praying the court to declare particular workers’ strikes
and planned strikes illegal. The Nigerian state, through one of its private counsel,
declared the June 2007 nationwide strike illegal on the basis of the judgment
of the Court of Appeal in Adams
Oshiomhole and Nigeria Labour Congress V. Federal Government of Nigeria and
Attorney-General of the Federation (2007) 8 NWLR (Pt. 1035) at page 58,
where the court declared strike action illegal. The major issue in the case
was the imposition of a ^1.50 fuel tax with effect from 1st
January 2004 by the Obasanjo regime. Labour and other civil society
organizations declared a strike against it. The court held that the Nigeria
Labour Congress had no right to call out workers on strike against general
economic and political decisions of the Federal Government because such have
nothing to do with breach of individual contracts of employment with various
employers as envisaged in the Trade Disputes Act.
The above decision of the court runs
counter to the principle established by the ILO Committee on Freedom of
Association, which stated that that the occupational and economic interests
which workers defend through the exercise of the right to strike do not only
concern better working conditions or collective claims of an occupational
nature, but also the seeking of solutions to economic and social policy
questions (ILO, 1996a, para. 481). In the same spirit, the Committee has
stated that workers and their organizations should be able to express their
dissatisfaction regarding economic and social matters affecting workers’
interests in circumstances that extend beyond the industrial disputes that
are likely to be resolved through the signing of a collective agreement (ILO,
1996a, para. 484). Thus, in its examination of a particular case, the
Committee concluded that ‘[a] general protest strike demanding that an end be
put to the hundreds of murders of trade union leaders and unionists during
the past few years is a legitimate trade union activity and its prohibition
therefore constitutes a serious violation of freedom of association’ (ILO,
1996a, para. 495).
Also, the Oyo State Government attempted to undermine the strike embarked
upon by public sector workers in the state on Monday, 22 April 2002. The
workers were protesting non-implementation of N6,500 minimum wage that had
been agreed since 2000. Rather than instituting legal action at the
Industrial courts, which have exclusive jurisdiction to entertain industrial
disputes, the government went to the High Court, where they felt their relief
could be granted more speedily. The Oyo state workers refused to abide by the
court order, which they considered as undemocratic and anti-union. Similar
court order was made when electricity sector workers planned a strike to
resist privatization. The court declared the strike illegal. An indefinite
strike action called by the NLC to protest the January 1, 2002 hike in the
prices of petroleum products suffered the same fate. The strike, which
started on Wednesday, 16 January 2002, was called off on Thursday, 17 January
2002 by the Central Working Committee in compliance with a Federal High Court
order. At the time of the call off, scores of labour leaders, including the
then NLC President, were still languishing in detention in several states of
the Federation.
Similar court order was obtained by the Federal Government in a
futile attempt to stop the June-July NLC organized nation-wide strike against
increases in the prices of petroleum products. Justice Ade Alabi of the
Earlier, on May 28, 2003, the Federal Government had referred the
5-month old strike of the Academic Staff Union of Universities (ASUU) to the
industrial court. Without concern for the legitimate demands of the strike,
the Industrial Arbitration Panel ordered that ‘ASSU should call off its
ongoing nationwide strike embarked upon by its members’.
What can be deduced from the foregoing is that we are at a
qualitatively new stage, where all talks about the rule of law, democracy,
fundamental rights, etc, are in the main, only obeyed in their breach. This
is the rule in a system ruled by profit
consideration. Rather than being independent and acting as a check on the
excesses of the executive, the judiciary is in total unity with the other
organs of government to deny the working class the enjoyment of basic
democratic rights. The ultimate class goal, under globalization, is to chain
labour so that employers may make profit, unrestrained. All the sub-systems
in the social structure play a functional role of maintaining the lopsided
status quo.
Under Globalisation:
Rule of Law is Rule of Capital, in Defense of Profit
In the age of globalization, the myth surrounding rule of law is
formally removed and rule of law is openly and formally declared as rule of
capital. As Mkandawire (2007:9) points out, monotasking has sought to reduce
the functions of the judiciary to the task of protecting private property.
According to a World Bank lawyer, judicial reform is part of a larger effort
to make the legal systems in developing countries and transition economies more market friendly. (Messick,
1999:118, cited in Mkandawire, 2007:9).
One of the ways by which the policy of privatization is imposed on
society by force is the control of the judiciary to dispense ‘justice’ from
the standpoint of capital. To ensure
that the Nigerian judiciary plays a role supportive of successfully imposing
privatization policy, the World Bank and the Nigerian privatization agency
had to organize a training programme for the judiciary. One of the stated
goals of the training programme was ‘to
put the courts in a better position to handle cases connected to the
privatization programme and to handle such matters in a speedy and efficient
manner’ (BPE, Annual Report, June 2000 – June 2001:42). In a paper, the
then Chief Justice of
One crucial and
important role of the Judiciary in the privatization programme is to ensure
that the programme has credibility…the most significant role of the Judiciary
in the privatization programme is in the readiness and preparedness of the
Judiciary to provide effective protection of law to investors, speedily and
efficiently. Any suspicion that the judicial system will be incapable or
unwilling to give such protection is fatal to any privatization programme,
particularly where the enterprise concerned demands huge injections of
investments (Uwais, 2000:14)
There is no pretension, under globalization, that the judiciary is
a class judiciary, to protect primitive accumulation by dispossession. This,
in spite of the fact that the Constitution, which the judiciary should
interpret and defend unequivocally provides against privatization:
The State shall direct its policy towards ensuring –
(a) that the
economic system is not operated in such manner as to permit the concentration
of wealth or means of production and exchange in the hands of individuals or
of a group
(1999 Constitution of the
The conscious
manipulation and control of the judiciary to ensure it serves the interest of
capital is responsible for the role the judiciary plays in undermining strike
actions, as discussed above.
Opposition to
Unionization
There tends to be a relationship between the capacity to engage in
strike actions and the existence or lack of a union. Strike actions are most
effective in the context of a unionized workforce. When workers are un-unionized
or de-unionized, they become marginalized individuals. In the interest of keeping down wage bills and maximizing
profit therefore, there is a mounting hostility to unionization, in the
current age of globalization. The rule in the privatized enterprises tends to
be ban on trade union membership and activity. In new tertiary institutions
of learning being set up, unions as well as strikes are purportedly outlawed.
For example, Governor Olagunsoye Oyinlola of Osun State, in his inaugural
speech at the take off of the Osun State University in September 2007, outlawed strikes and by extension, unions.
(Saturday Sun, 22 September
2007:11). Similarly, in Oyo State, 34,000 public sector workers, comprising
teachers at primary and secondary schools, local government council
employees, health personnel, and so on, were purportedly declared sacked on
Wednesday 19 September 2007 for embarking on a prolonged strike for increased
pay, N9,400 minimum wage where the exchange rate to the US dollar was about
$1:^130. (New Age, Friday, 21
September 2007).
The Role of Security
Agencies: Monstrous Violence against the Working Class as a Ruling Class
Solution to falling Profitability
One hallmark of capitalism in the phase of globalization is the strengthening of the apparatus of
coercion. With all the frenzied call for privatization, there has been no
call for privatization of the state and particularly the security arms. As
John Rees (2001:6) puts it,
Internationally,
the state remains indispensable in underpinning the activiities of
multinationals. There are no proposals, even from the most hysterical free
marketers, to return to the infancy of the capitalist system, when
….corporations like the East India Company would employ their own troops.
Armed action or the threat of armed action by the state remains the last resort
for every capitalist corporation whose markets or production facilities are
endangered by international rivals, be they states, other corporations or
restive foreign populations unconvinced of the virtues of the free market’
Thus, the
The lessons of
history are clear: market economies, not command-and-control economies with
heavy hand of government are the best ways to promote prosperity and reduce
poverty. Policies that further strengthen market incentives and market
institutions are relevant for all economies (US
National Security Strategy, 2002)
But in case of resistance or reluctance to adopt pro-business policies
anywhere in the world, then force will be used:
While the
The monstrous military face of globalisation declared by the
We were very
prudent and humane about the management of the crisis because if we relied on
the law, we would be justified to have done otherwise; but for the uniqueness
of that strike. We have legal right to kill and we chose not to exercise our
right’
(Nigerian Tribune, 24 July 2003:3).
It should be recalled that not
less than 28 persons were killed during the said strike. The casualty
would have been more if the police were to have exercised their right!
The point therefore is that the
traditional role of the state to repress the poor strata of the society who
do not own property in protecting the barefaced profit interest is
strengthened unabashedly under globalization. For, it is admitted that the ‘legal right’
of security agents to kill is not a creation of ‘globalisation’; that
tendency is only strengthened. The 1999 Constitution of Nigeria provides
exceptional circumstances when the fundamental right to life may be violated.
One of the exceptional circumstances is in the course of suppression of riot:
‘A person shall not be regarded as having been
deprived of his life in contravention of this section if he dies as a result
of the use, to such extent and in such circumstances as are permitted by law,
of such force as is reasonably necessary –
(c ) ‘for the purpose of suppressing a riot’
(Section 33 (2) (c)
From the foregoing, in the context of globalization culture, the
right to strike has come under greater restraint in various ways in
The ILO Principles On
the Right to Strike
While the Nigerian labour law restricts the right to strike and
the judiciary goes ahead to declare strike action against general economic
and political policies illegal,
SHORTCOMINGS IN THE ILO
PRINCIPLES ON THE RIGHT TO STRIKE
However, while we have
rationalized the right to strike by relying on certain provisions of the ILO
cited above, it should be recognized that there is a major shortcoming in the
so-called ILO principles on the right to strike. The key shortcoming is that
the right to strike is not set out explicitly in any ILO Conventions and recommendations
(Gernigon, Odero, and Guido, 2000). What this means is that reliance on the so-called
ILO principles, by trade unions, is of limited use. All that we can ascertain
as the ‘ILO principles on the right to strike’ are from the opinions of some
ILO supervisory bodies (principally the Committee on Freedom of Association —
since 1952 — and the Committee of Experts on the Application of Conventions
and Recommendations since 1959) that have been adopting principles that appear
supportive of strike activity as a fundamental right, based on the general
principles of freedom of association embodied in the ILO Constitution and
some other core Conventions such as the Freedom of Association and Protection
of the Right to Organise Convention, 1948 (No. 87), on the subject matter. Though
it does not explicitly mention the right to strike, the Freedom of
Association and Protection of the Right to Organise Convention, 1948 (No.
87), establishes the right of workers’ and employers’ organizations to ‘organize
their administration and activities and to formulate their programmes’ (Article
3), and the aims of such organizations as ‘furthering and defending the interests
of workers or of employers’ (Article 10).
But it should be borne in mind that neither the ILO Conventions
nor the Recommendations have legal force in individual countries (Aborisade,
1992: 76). Member states are only morally obliged to honour by ratifying and
implementing Conventions; they are not obliged to implement Recommendations.
In other words, while Conventions have binding moral force, Recommendations
do not (See Article 19 of ILO Constitution). Therefore, the opinions,
recommendations or principles established by ILO Committees would carry less
moral force. Even at that, the so-called principles by both the Committee of
Experts and the Committee on Freedom of Association tend to be weak. We shall
examine the following aspects to corroborate the perceived shortcomings of
the ILO principles on the right to strike – principles on essential services,
no work no pay, political strikes, and sympathy strikes.
Principles on Strikes in
Essential Services
The Committee of Experts and the
Committee on Freedom of Association appear
to justify the scope of restriction of strike action in the ‘essential
services’. In 1983, the Committee of Experts defined such services as
those ‘the interruption of which would endanger the life, personal safety or
health of the whole or part of the population’ (ILO, 1983, para. 214). This
definition was adopted by the Committee on Freedom of Association shortly
afterwards. Over time, the two supervisory bodies of the ILO have insisted
that use of ‘essential services’ in the determination of enterprises where
strike action may be prohibited should be applied in the strict sense of the term. However, according to the
Committee on Freedom of Association, what is meant by essential services in the strict sense of the term ‘depends to a
large extent on the particular circumstances prevailing in a country’ and
that ‘a non-essential service may become essential if a strike lasts beyond a
certain time or extends beyond a certain scope, thus endangering the life,
personal safety or health of the whole or part of the population’ (ILO,
1996a, para. 541). In terms of specific
services, the Committee on Freedom of Association has considered to be essential services in the strict sense,
where the right to strike may be subject to major restrictions or even
prohibitions, to be: the hospital sector; electricity services; water supply services;
the telephone service; air traffic control (ILO, 1996a, para. 544). In a general sense, the Committee on Freedom
of Association has considered that the following sectors do not constitute
essential services, in the strict sense of the term:
• radio and television;
• the petroleum sector;
• ports (loading and unloading);
• banking;
• computer services for the
collection of excise duties
and taxes;
• department stores;
• pleasure parks;
• the metal sector;
• the mining sector;
• transport generally;
• refrigeration enterprises;
• hotel services;
• construction;
• automobile manufacturing;
• aircraft repairs;
• agricultural activities;
• the supply and distribution
of foodstuffs;
(ILO, 1996a, para 545)
Though the above lists for both categories are not said to be
exhaustive, considering the contention that it all depends on concrete
circumstances in individual countries. However, when we consider the caveat
that definition of essential services can also be influenced by the length and
scope of strike action, any of the lists excluded from essential services may
become essential.
On ‘No-work-no-pay’
principle
The ‘no-work-no-pay’ principle refers to wage deductions for days of strike action. The Committee on
Freedom of Association has maintained that this practice gives rise to ‘no
objection from the point of view of freedom of
association principles’ (ILO, 1996a, para. 588). Thus, workers and
trade unions find no support in the ILO principles in resisting wage
deductions during periods of strike actions.
On Political Strikes
On the issue of political strikes, the Committee on Freedom of
Association considers that ‘strikes of a purely political nature … do not
fall within the scope of the principles of freedom of association” (ILO, 1996a,
para. 481). In other words, from the standpoint of the Committee, the right
to strike does not cover strikes of a purely political nature, although they
do cover those which seek a solution to major issues in economic and social
policy. Thus, within the framework of this ‘principle’ the popular strikes
declared by the labour and trade union movements in support of the
annulled June 12, 1993 election to
enable MKO Abiola actualize his mandate and to terminate military
dictatorship would be fit for restraint and repression. It is strange that
the Committee could come to the above conclusion or principle. After all,
Article 10 of the Freedom of Association and Protection of the Right to
Organise Convention No. 87 of 1948 prescribes that workers and employers
associations have a right to organize their activities with the aim of ‘furthering
and defending the interests of workers or of employers’. Now, interests are
not limited to industrial issues alone. In fact, the more fundamental
policies which affect the industries and daily lives are products of
political decisions.
On Sympathy Strikes
Sympathy strikes occur where workers or
trade unions declare a strike in support of issues which do not affect
them in a direct and immediate manner. In
its General Survey of 1983, the Committee of Experts defined sym-pathy
strikes as strikes embarked upon ‘where workers come out in support of another
strike. The Committee of Experts maintained that workers should be able to
take such action provided that the initial strike they are supporting is
itself lawful (ILO (Committee of Experts), 1983, para. 217). In other words,
where the initial action (such as an action taken for political reasons) is
considered unlawful, the sympathy strike action itself becomes unlawful and
it would be permissible, from the standpoint of the Committee of Experts, to
restrain such an action.
Conclusions
It should be noted that the right
to strike was generally considered to be an unlawful activity of a criminal
nature, with a few exceptions, until the late nineteenth century, and
remained unlawful in many countries beyond the mid-twentieth century. That it
has been recognized formally by majority of countries as a fundamental right
and by the United Nations, which has so embodied it in the United Nations
International Covenant on Economic, Social and Cultural Rights, 1966, should
continue to be supported and strengthened. It is however a big minus that the
most relevant UN body, the ILO, has no single Convention or Recommendation
upholding the right to strike as a fundamental right. That the right to
strike is universally recognized as a fundamental right did not occur on the
basis of the free will of employers in both the public and private sectors.
It has been on basis of pressure from below, internationally. Therefore,
academics, unionists and activists in the social movements have a
responsibility to advocate explicit ILO conventions and recommendations
upholding the right to strike and a sharpening of the principles established
by the ILO supervisory committees, so that the principles clearly,
unambiguously and unequivocally defend and advance the right to strike,
uncompromisingly and in all ramifications.
References
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