6th July, 2019
REJOINDER: Anambra State Government has no powers to arbitrarily ban a registered trade union in Nigeria.
Our attention has been drawn to a report titled, “Anambra State Government bans tricycle union” published across online media platforms on Friday, July 5, 2019.
The report, which has curiously gone viral on the Internet smacks of puerility. The malafide action of the Anambra State Government as published is not only infantile, but clearly baseless, null, void and of no effect whatsoever in common law.
While we are still at a loss as to why a democratic Government of Anambra State, a primary beneficiary of the 1999 Constitution of the Federal Republic of Nigeria would be so reckless, draconian albeit dictatorial thereby subverting the will of the people using state power, but questions remain on the competence of state officials, and one may not be wrong to assume that the State Executive Council meetings could be weekly a binge party, given the nature of its public policies and antecedents.
Now, the 1999 Constitution of the Federal Republic of Nigeria, Section 40 thereof provides that “Every person shall be entitled to assemble freely and associate with other persons, and in particular, he may form or belong to any political party, trade union or any association for the protection of his interests.” Section 40 holds great significance, for it gives the labour, a constitutional right to associate freely. The Constitution further protects the workers’ rights not only to belong to but also to form a trade union. The 1999 Constitution expressly prohibits or bars a “closed shop” agreement, “yellow dog” contract, or any other arrangement that compels a worker to join a particular union or that excludes the worker from union membership or activities.
Section 40 of the Constitution further guarantees the right of every citizen to freely associate and interact with other citizens for purposes that are of common interest to the said citizen, it is trite law that no right is absolute. But the circumstances and grounds upon which the exercise of such rights are to be limited is the pertinent question that comes to fore. Guided by the constitution itself, section 45 stipulates in effect that any law (emphasis mine) that is reasonably justifiable in a democratic society would justify the circumscription of the free exercise of a constitutional right, therefore:
What law or circumstances reasonably justifiable in a democratic society did the Anambra State Government rely on, to the extent that it seeks to limit the free exercise of the rights guaranteed under Section 40 of the 1999 Constitution?
In determining the above-stated question, whether a law is reasonably justifiable, the test required for any law restricting section 40 is an objective rather than subjective one and the standards include (i) whether there is a grave risk of harm to a larger section of the community. (ii) whether the risk of harm is imminent and demanding grave urgency; and this should not depend on the subjective view, opinion or arbitrariness of the Governor or any Commissioner in the executive arm of the of the State Government. Having regards to the wordings of section 45 of the 1999 Constitution, which postulates that laws which attempt to hinder the free exercise of rights must have their justifiability tested within the ambience of “a democratic society”. If the ethos of democratic values involve the freedom of interaction, freedom to exchange socio-economic ideas, then any law nay action that seeks to circumscribe such liberty is draconian, despotic or totalitarian and can only be accommodated under a military society or a police state, but would certainly run counter against the basic pillars or tenets of a democratic society, especially when the powers it purports to confer are exercisable arbitrarily by the recipient of that power.
Therefore, the intendment or purport of Section 45 of the 1999 Constitution of the Federal Republic of Nigeria is that the exercise of the rights conferred by Section 40 of the constitution does not rest primarily, substantially or effectually on the whims, caprices nay subjective judgment or despotism of the state Governor or his commissioners but through a law reasonably justifiable in an extant democratic society, like in Nigeria.
For record purposes, we will like to state the true picture of the prevailing circumstances in Anambra State as follows:
1. Tricycle Owners Association of Nigeria (TOAN) is a registered and recognized trade union by the Registrar of Trade Unions under Form B of the Trade Unions Act, Cap. T14, Laws of the Federation of Nigeria, 2004 in January 26, 2016; and it is, therefore, only the Registrar of Trade Unions (under the directives of the Minister of Labour of the Federal Ministry of Labour and Employment) that has the power to register, recognize, de-register or proscribe any trade union that may organize in specific areas of the economy, and not even a commissioner of any State Government, whence issues of trade unionism come directly under item 34 of the Exclusive Legislative List of the 1999 Constitution of the Federal Republic of Nigeria.
2. That the Tricycle Owners Association of Nigeria (TOAN), an affiliate of Trade Union Congress (TUC) is the only umbrella body authorised by law to co-ordinate, monitor or regulate the activities of all tricycle workers in the whole Federation of Nigeria or any part thereof including Anambra State.
3. That the Tricycle Owners Association of Nigeria (TOAN), Anambra State Chapter is a lawful, peaceful and non-violent union of employers and workers who are engaged in the tricycle trade or industry operating in Anambra State . As far as the Police and the Department of State Services (DSS) are concerned, there has been no negative reports against the union engaging in anti-social or criminal activities anywhere in Anambra State.
4. The laudable programmes and objectives of the Tricycle Owners Association of Nigeria (TOAN) are meant to restore sanity, probity, accountability, and further the interests and welfare of all employers and workers in the tricycle trade or industry operating in Anambra State.
5. That touts and louts operating anti-trade union associations had enslaved albeit molesting, harrassing, intimidating and extorting and defrauding the commonwealth of tricycle workers in Anambra State. Many a tricycle workers have been either been maimed or murdered by those violent touts working in cahoots with some corrupt government officials.
6. Expectedly, the touts and louts who hijacked the affairs of tricycle employers and workers have been greasing the palms of corrupt government officials at the expense of the tricycle owners and operators in Anambra State who pay outrageous and multiple levies to the extortionists or rackeeters.
7. The High Court of the Federal Capital Territory (FCT) sitting at Kwali had on June 24, 2019 issued an order restraining the named illegal revenue collectors, touts and louts operating in Anambra State from harassing, intimidating, assaulting, extorting vide issuance of tickets and the imposition of dues and levies occasioning forceful distrainment of tricycles belonging to members of the Tricycle Owners Association of Nigeria (TOAN), Anambra State. The court presided was over by Hon. Justice Venchak S. Gaba gave the order on Monday while ruling on the motion FCT/HC/M/7331/19 in respect of suit FCT/HC/CV/2268/19. It voided the collection of dues, levies or sales of tickets to tricycle workers by named touts and louts other than TOAN. This apparently miffed the tout-infested Anambra State Ministry of Transport.
8. The Anambra State Commissioner for Transport said that, “TOAN is strange to Anambra State Government, the group operate in disguise and in very negative circumstances.” Any right-thinking man may be tempted to ask: What are the specific plaints constituting ‘negative circumstances’ which was reported against the Tricycle Owners Association of Nigeria (TOAN), Anambra State Chapter? The answer is none, TOAN is a lawful and non-violent association of law-abiding tricycle employers and workers in Anambra State for the purposes of collective bargaining. The Anambra State Government by saying that TOAN is ‘strange’ is tantamount to saying that the Laws of the Federation of Nigeria and the 1999 Constitution of the Federal Republic of Nigeria under which TOAN is duly registered and operates upon is ‘strange’ to the Anambra State Government. Indeed, the Anambra State Government of Nigeria has gone rogue.
9. The Anambra State Commissioner for Transport further stated, apparently exposing his crass ignorance and lack of appreciation of the relevant laws of the Federation. He said, “No union can exist without the consent of the government.’’ For the avoidance of doubt, no duly registered trade union or federation of trade unions in Nigeria require the consent of any State Government to operate or function. That misguided statement is akin to saying that the Laws of the Federation of Nigeria cannot operate in any part of Nigeria nay Anambra State without the consent of the State Government. This is gross and worrisome, especially when it is coming from a component state of the Federation of Nigeria, a federating unit. I hereby call on the presidency and all security agencies, particularly the DSS to investigate and ascertain the true motive albeit the secessionist agenda of the Anambra State Government in the interest of National Security.
From the foregoing, it is patently clear that at no point whatsoever has the Tricycle Owners Association of Nigeria (TOAN), Anambra State Chapter engaged in any unlawful or ‘negative circumstances’ as falsely posited by the Anambra State Government, the purported ban is simply a ploy to suspend the 1999 Constitution of the Federal Republic of Nigeria and to subverting the will of the teeming members of the tricycle employers and workers operating in Anambra State. For the avoidance of doubt, the entire tricycle workers in Anambra State are hereby enjoined to always remain calm, peaceful, law-abiding as usual, to disregard the purported ‘ban’ albeit puerility of the Anambra State Government and prepare for the forthcoming general Congress slated for August 24, 2019.
We therefore hope that Anambra State Government would reverse the reckless action under review, which has no effect in law and to desist forthwith from negating the rule of law for the overall interest of the Anambra People. In effect, the Anambra State Government should channel its resources to eliminating and curbing the activities of touts and illegal revenue collectors who on daily basis, harass, molest, intimidate and maiming the Anambra people.
Signed
KeneChukwu Okeke, MCSD
Chief Ombudsman for the Tricycle Owners Association of Nigeria (TOAN), Anambra State Chapter.