ASUU strike has generated a lot of controversy and backlash from different quarters in the country.
Recall that Academic Staff Union University embarked initially on a four weeks strike from February 14 2022 before embarking on an indefinite strike. Since then, there has been a series of negotiations and engagement between the FG and ASUU which have been fruitless.
The reason behind ASUU strike is simply the inability of the Federal Government to honour their pledge on proper funding of the Educational Sector since 2001.
The matter gathered up to head when the Federal Government sued ASUU before the National Industrial Court. The victim of the strike which are the students were also represented by a lawyer. The students have taken different steps and demonstration to show their dissatisfactions, one of such is the blockage of Lagos -Ibadan expressway which left many people stranded. National Association of Nigerian Student also posted on the social media on the 17th September,2022 as follows: “We shall begin another round of protest next week by storming the airspaces on Monday, 19th September 2022 to #OccupyTheAirports. We want to let the world know 7about the pains and anguish students are going through.”
In all of this what is the position of the law. Does the Federal Government have the right to sue ASUU?
There are two set of laws that come to mind which are the Trade Dispute Act and the Constitution of the Federal Republic of Nigeria,1999 (As amended).
The Constitution of the Federal Republic of Nigeria 1999, Section 40, guarantees its citizens right to freely join any political party or trade union in order to protect its interest.
Sections 18 and 31(6) of the Trade Dispute Act are relevant to this current case.
Section 31(6) provides for four conditions that must be followed before embarking on strike which are
1. The workers must not engaged in the provision of essential service
2. The strike must be in contemplation or furtherance of a labour dispute that must constitute a dispute of right.
3. The provision of the Arbitration Act must be complied with.
4. The union must have conducted a ballot at which a simple majority of all registered members voted to go on strike
The above provisions make it abundantly clear that ASUU must have fulfilled all the above conditions before they embarked on strike. Did ASUU really fulfilled the condition? The answer is in affirmative. ASUU is not engaged in essential service as defined by section 9(1) of the Trade Dispute Act. The conditions here are cumulative. Majority of the ASUU members voted in support of the strike.
For the purpose of clarity, section 18(1) provides as follows:
An employer shall not declare or take part in a lock-out and a worker shall not take part in a strike in connection with any dispute where –
(a) The procedure specified in section 4 or 6 of this Act has not been complied with in relation to the dispute; or
(b) A conciliator has been appointed under section 8 of this Act for the purpose of effecting a settlement of the dispute; or
(c) The dispute has been referred for settlement to the Industrial Arbitration Panel under section 9 of this Act; or
(d) An award by the arbitration tribunal has become binding under section 13(3) of this Act; or
(e) The dispute has subsequently been referred to the National Industrial Court under section 14(1) or 17 of this Act; or
(f) The National Industrial Court has issued an award on the reference.
Another conditions set out in the Act as contained in Section 18(1) of the Trade Dispute Act are disjunctive because of the use of the word “or”. Paragraph (a) provides that before strike can be commenced section 4 of the Act which provides that the parties to a trade dispute are enjoined to attempt to settle the dispute amicably by any agreed means and if settlement fails then the dispute should be settled by mediation within seven days.
Section 6 that is mentioned in the paragraph deals with the formal declaration of a trade dispute. This occurs if the parties fail to reach an amicable settlement within seven days of the appointment of a mediator. The section requires either of the parties to report the dispute to the Minister of Labour within three days of the end of the seven days.
In the present case, ASUU has complied with the paragraph (a) of section 18(1) of the Trade Dispute Act.
Section 18(2) makes it an offense for any person who contravenes subsection (1) of the section. Thus, if workers take part in a strike in contravention of section 18(1), the strike will be prima facie illegal and the strikers will be visited with criminal sanctions.
The Case of Eche v. State Education Commission is relevant in this present case.In that case, after efforts at mediation failed, public primary and post primary school teachers in Anambra State proceeded on a strike. The judge held that the teacher’s strike was lawful because they don’t have to comply with all the conditions in section 18. The judge said;
It is therefore not correct, “if a strike is not to be considered as illegal, all the provisions of the various subsections must be complied with by the worker. It is sufficient, in my view, if the provisions of only one of the subsections have been fully complied with”.
That is the effect of the word “or” that has been used after each subsection.
Relying on the above case, ASUU fulfilled one of the conditions particularly paragraph.
The outcome of the FG case with ASUU depends on the interpretation of the relevant laws by the court