By Awa Kalu, SAN
As is within the public domain, the Judiciary Staff Union of Nigeria, JUSUN, started its strike on 6th April, 2021 and within the period of more than two months, the courts have remained shuttered, making the exercise of judicial powers virtually impossible.
What has happened without any shred of doubt is that our Courts have become what a good friend of mine called Judgment-reading courts. It would be nice at this stage to remind whosoever is reading this piece that Part 2 of Chapter 1 of the Constitution of the Federal Republic of Nigeria 1999 (Hereafter, the ‘extant Constitution’) makes provisions for the powers of the Federal Republic of Nigeria.
Accordingly, while Section 4(1) of the extant Constitution provides that The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives. Section 4(2) expresses that vesting of power to mean that;The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.
The provision in section 5 relates to executive power to the effect that; Subject to the provisions of this Constitution, the executive powers of the Federation:(a) shall be vested in the President and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and ministers of the government of theFederation or officers in the public service of the Federation; and(b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.
For the avoidance of doubt, Section 6 (1) and (2) of the extant Constitution relates to Judicial powers and states unequivocally that; (1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation. (2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State.
This piece will not, unless as may become necessary, deal with the exercise of legislative or executive power and accordingly, will analyse the long-lasting strike by JUSUN with regard to Judicial power only.
According to Professor Nwabueze in his very well celebrated book; JUDICIALISM IN COMMONWEALTH AFRICA (1977); ‘The Expression Judicial power, understood as the power which the state exerts in the administration of public justice in contradistinction from the power it possesses to make laws and the power of executing them, is not in the least ambiguous. Furthermore, Professor Nwabueze expresses the view that; ‘Seven different attributes are identifiable in these definitions of Judicial power:
i. The existence of a dispute between two or more parties about some existing legal right; an act, e.g, a contract or an industrial award that only creates new rights by which future conducts is to be regulated cannot therefore be judicial;
ii. A compulsory jurisdiction at the instance of the party to enquire into the dispute; iii. A power to determine authoritatively (i.e, Conclusively) the facts of the disputes; iv. A power to determine authoritatively, the law relevant to the dispute; v. A decision arrived at by the application of the relevant law to the facts, and which by declaring the rights in question, finally disposes of the whole dispute;
vi. This final determination binds the parties in the dispute; vii. A power to enforce compliance with or obedience to the decision.
The most authoritative Dictionary known to most lawyers, i.e The Black’s Law Dictionary (10th Edition) similarly defines judicial power to mean the authority vested in Courts and Judges to hear and decide cases and to make binding judgments on them; the power to construe and apply the law when controversies arise over what has been done or not done under it.
For the avoidance of doubt, it will be important to emphasize at this stage that the exercise of judicial power is an essential attribute of Government (whether Federal or State). We must also note that when the power to exercise that attribute of state power is rendered impossible, then very serious legal considerations as well as consequences which are not anticipated inevitably arise.
The question which then arises is whether any trade union or group of persons can prevent any government from exercising its power or any component of his power, whether legislative, executive or judicial. The answer will be clear when we look at the definition of the word Strike. Section 48(1) of the Trade Disputes Act states that; ”Strike means the cessation of work by a body of persons employed acting in combination, or a concerted refusal or a refusal under a common understanding of any number of persons employed to continue to work for an employer in consequence of a dispute, done as a means of compelling their employer or any persons or body of persons employed, to accept or not to accept terms of employment and physical conditions of work; and in this definition:- (a) “cessation of work” includes deliberately working at less than usual speed or with less than usual efficiency, and (b) “refusal to continue to work” includes a refusal to work at usual speed or with usual efficiency.”
By the same token, the Black’s Law Dictionary aforesaid defines Strike to mean an organised cessation or slow down of work by employees to compel the employer to meet the employees’ demands; a concerted refusal by employees to work for their employer or to work at their customary rate or speed, until the employer grants the concession that they seek.
What the Trade Disputes Act (as well as the Black’s Law Dictionary) contemplates is that a Strike will become necessary in consequence of a Dispute ‘done as a means of compelling their employer or any person or body of persons to accept or not to accept terms of employment and physical conditions of work.’ If we may ask, who is the employer of the JUSUN workers who are on strike?
In addition, are those workers on strike because of a Dispute with individual State governments or with a combination of all State Governments, or has the strike arisen because of a dispute with the Federal Government? Also relevant is the question of whether the Judicial Staff who are on strike have any condition in their individual or collective agreement relating to or arising from ‘Judicial Autonomy’?
Irrespective of whatever answer you have, can the judicial apparatus of any state be shutdown for as long as two months because of the quest for Judicial autonomy as presented by JUSUN, at least publicly? The answers to these questions will be provided in the next installment to this piece.