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The Authority of the Land, the Law of the Authority

By Owei Lakemfa

I WAS close to the late Pro-Democracy icon, Dr. Beko Ransome-Kuti who for decades, was a major  leader of the Nigeria Medical Association, NMA.  When he  was appointed into the Board of the Federal Teaching Hospital in Lagos, there was a policy that doctors in the public sector should not engage in private practice. It sounded quite good that public sector doctors should be loyal to the public they are engaged to serve, be professional and productive,  and  should  not divert patients to private hospitals.

So doctors  who choose to remain employed in the public sector had the option of  resigning or folding up their private practice.  There were lots of complications. For instance can a doctor at his free time practice,   just as a public sector teacher can organise weekend or after- School hour lessons?

The Ore Falomo-Beko Board  decided to implement the policy by opening a movement register for all doctors. I thought  it was a tall order and suggested he backed off and concentrate efforts and energy in improving the dilapidated health structure. But he and the Board  were adamant and a lot of time and energy were lost in squabbles with  affected doctors. The Beko team lost, and it almost led to their leadership of the NMA being challenged. Today, we are told that the old policy will be revived, and any doctor who wants to do any private practice can only do so by  farming. Good idea, but have we learnt from the past?

Another policy billed for implementation is the enforcement of the “No Work, No Pay” rule in the Trade Disputes Act. Perhaps, trying to shake off the rash of strikes, the Labour Ministry has made it known that this will be strictly implemented. This provision of the Labour Law is closely likened with another which bars workers from going on strike and employers  from engaging in lockout.  The latter is like a comedy because while you can certify a workers strike action, which is the withdrawal of their labour,  same cannot be done with lockout. All an employer who wants to engage in a lockout of workers in pursuance of a trade dispute needs do is simply shutdown the company “for operational reasons”. The same vague excuse airlines hide under to delay flights for hours.

A  strike is usually the last option left for the worker, and to him, it is akin to a war in which he hopes to survive. Usually, the reason for the worker putting his job on the line  is quite weighty, so the threat of none payment for the period of the strike,  is virtually of no issue or serious concern to him. The Obasanjo administration tried to implement this during the anti-fuel price increase protests. But it was impracticable to deduct three or four days wages over a general strike. The private sector companies that   initially took this to heart, found themselves in renewed local strikes. Generally, it is of no consequence or significance. What should be germane is the reason for a strike, how to return  the industrial situation  to normalcy and prevent future industrial actions.

Let us take one primary reason for strikes in the country, at least in the education sector; non implementation of agreements reached. This has been the primary cause of a number of strikes by the Academic Staff Union of Universities, ASUU. To me, an employer who reneges on agreements freely entered into, has no reason to complain about the reaction of his staff. In fact, the non- implementation of agreements freely entered into, is a serious danger to industrial harmony.

I recall the 2000 Wage Review  Agreement  between the Obasanjo administration and trade unions on  a new Minimum Wage of N5,000. The Agreement provided for a further 25 percent wage increase with effect from May 2001 and a follow-up 15 percent increase with effect from May 2002. But the government did not implement any of the increases. After the unions repeated demands for  the implementation of the total 35 percent wage increase were ignored,  they decided to embark on strike. To avoid this, President Olusegun Obasanjo   set up an  Inter-Ministerial  Panel to negotiate with the unions. Again, an agreement was signed,  but not implemented. When another strike was threatened, Obasanjo argued that  the new  Agreement was not implemented because the Finance Ministry which  he claimed, knew how much the government could  afford, was not part of the  Government Negotiation Team. So he set up a new team led by then Minister of State for Finance, Martins Kuye. Again, negotiations followed and agreement signed. The Government also did not implement this. Obasanjo’s Trump-like argument was that the new agreement was signed by a mere Minister of State. So he set up a new Government Negotiation Team led by then Secretary to the Government of the Federation, Chief Ufot Ekaette.

To save the country from an unnecessary general strike, the unions conceded a reduction of the agreed wage from 35 percent to 12.5 percent.  Despite this, the Government unilaterally implemented only an increase of between 4 and 12.5 percent. If the workers had gone on strike, would they have been blamed, or their salaries deducted based on the ‘No Work, No Pay’ policy?

I think for employers to be able to implement this policy, they will need to break the workers and their unions. In praxis, the first clause in agreements ending or suspending strikes is that there will be no victimisation in any form. This of course includes any disciplinary action arising from the strike. To deduct salaries,   to the workers, would amount to victimisation. If you ask me, I will say laws are made for man, not man made  for laws.

Another flex of authority is over the issue of Restructuring the country. The House of Representatives Speaker, Honourable Yakubu Dogara  made a correct diagnosis that the ground swell of agitations for the Restructuring is an indication that  something is wrong with our federation and that something must be done.

He went on to arrogate the power of restructuring to the National Assembly alone because the constitution so empowers it, and the constitution, he argued, is the grundnorm. This is in reference to the 1934 argument of Jurist, Hans Kelsen that the basic norm or underlying basis for a legal system is the “grundnorm” in this case, the constitution.

I agree with the Right Honourable  Dogara that the constitution is the grundnorm, our ultimate law, but it is in reality, a contraption which cannot carry the weight of the country; we either brace it and hope  it can continue to stand, or build a new viable structure. I rest my case.



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