By Tayo Oyetibo, SAN

The dispute on the implementation of the new National Minimum Wage Act by some States in Nigeria is a time bomb waiting to explode. One would have expected that when President Goodluck Jonathan signed the new Act March 2011, he must have adverted his mind to Section 14 (2)(b) and item 34 of the Second Schedule to the 1999 Constitution. He should, as the leader of the Nigerian people, have considered how the money would be sourced by employers of labour and the effect on the economy.

Section 14(2)(b) of the Constitution of Nigeria provides that the purpose of government is “…the Security and Welfare of the people…” of Nigeria. In essence, government officials have a duty to reflect on the impact of any policy or law on the security and welfare of Nigerians.

In addition, the government must understand what the Constitution says on such policy or law.

Goodluck-Jonathan

With respect to the question of minimum wage, item 34 of the Second Schedule gives the National Assembly powers to “prescribe a national minimum wage for the Federation or any part thereof.” Such prescription of a new minimum wage by the National Assembly must be exercised within the purview of Section 4 of the Constitution which provides that laws must be made for the “peace, order and good government of the Federation or any part thereof…” Nowhere is it envisaged by the Constitution that a law would be passed to impose hardship on the people of Nigeria.

To be specific, before the passage of the National Minimum Wage Act, the Peoples Democratic Party, PDP, led Federal Government ought to have thought about where the money would come from instead of the new blackmail or agitation for the increment in pump prices of petroleum products.

It is necessary to state that the Nigerian people are suffering. Most people are unemployed or under-employed. This notwithstanding, the cure for these malaise is not a new minimum wage law but good government policies that would cure poverty and banish the sluggishness in the economy.

The summation of my argument which I will proffer hereunder is that the new minimum wage law is unconstitutional insofar as it seeks to impose obligations on other employers of labour other than the Federal Government.

It is also my argument that the law has not been made for the “peace, order and good government of the Federation or any part thereof…” but to guarantee the electoral victories of the PDP led Federal Government.

In the first instance, the purpose of any government in Nigeria is the security and welfare of all Nigerians. How many Nigerians would benefit directly from the New National Minimum Wage Act? Few, of course. Most Nigerians work in the agricultural sector and private organizations that employ less than 50 workers.

These categories of workers have been exempted from the N18,000 new minimum wage. The other few percentage of workers in government offices are entitled to minimum wage of N18,000 while all Nigerian must suffer to pay their salaries by having an increase in pump price of petroleum products.

In addition, the dithering private sector has been saddled with more labour cost while no infrastructure is provided for them to compete internationally.

The Jonathan led government has therefore not followed the spirit and letters of Section 14(2)(b) of the 1999 Constitution in passing the new National Minimum Wage Act.

Second, and of course fundamentally, the National Assembly lacks the powers to enact a National Minimum Wage Act that would impose obligations to pay on other employers of labour other than the Federal Government. Item 34 of the Second Schedule provides that the National Assembly shall prescribe a national minimum wage. But the language of the Constitution is important here. “Prescribe” has been defined by the Supreme Court in IBRAHIM V. BARDE (1996) 9 NWLR (PT 474) 513 @ 578 as follows:

“The word “prescribe” bears in its ordinary natural meaning as being to lay down or impose authoritatively. To lay down as a rule or direction to be followed…to lay down authoritatively as a guide, direction or rule.”

Any amount stated as a national minimum wage by the Federal government is therefore an authoritative guide and not an obligation to be carried out. This is because Nigeria is a Federation and the Federal Government can only state the ideal sum to be paid as minimum wage. The language of the Constitution must be strictly interpreted.

The Federal Government therefore erred when it passed the palliative, called the National Minimum Wage Act instead of addressing the myriads of problems confronting the Nigerian economy. The National Minimum Wage Act is a sop to workers. It would lead to inflation in the absence of more production and a further circle of new minimum wage laws.

Lastly, it is in bad taste for the Governors, in flagrant violation of the Constitution, to negotiate with the Federal Government that pump prices of petroleum products should be increased to enable the State Government pay the N18,000 minimum wage. As stated earlier, most Nigerian would not benefit directly from the new minimum wage. All Nigerian however go to the same market and must pay for the new minimum wage by paying more for petroleum products.

The effect of any increment will be soaring prices of all goods and services. Do our government officials think about the security and welfare of Nigerians at all, which is the primary reason for their being in government? I think not. Nigerian need to know the truth and are ready to accept the truth only if those in government live like all other Nigerians.

They should reduce their jumbo salaries and go through what everybody goes through. Then, the government officials would be able to formulate policies and pass laws that will help the nation instead of passing a bill that will compound the problems of Nigerians. The unconstitutional National Minimum Wage Act is one of those laws.