By Femi Falana

The implementation of the Structural Adjustment Programme engineered by the International Monetary Fund and World Bank in the 1980s ruined the economies of most African States. The resultant economic crisis led to withdrawal of subsidies from social services, retrenchment of workers, payment ad servicing of questionable debts, trade liberalization etc.

The trade unions and many civil society organizations organized strikes and protests against the imperialist agenda. The states clamped down on such protests and introduced anti_labour laws and policies.This paper examines the emerging trends in employment relations in the context of globalization which has deepened the economic crisis in Africa. The paper concludes by calling on trade unions to challenge the dominance of the economies of African States by market forces.

Conceptual Framework

Employment or industrial relations is a dynamic socio_economic concept. It has been defined as the “Interactional activities of employers and their organizations, and the employees and their organizations, and the joint agents of these two and the government, either as a party or umpire or both in the regulation of employment relations” .

Industrial relations has also been said to be concerned with labour related problems such as “employment problems and security; conditions of work; remuneration level, frequency, methods of wage payment and fixing, labour and employment grievances and disputes, level of production and employee development, which include training, upgrading and promotions. The institutions concerned with these labour problems namely trade unions, employers organizations, the labour administrative mechanisms, such as joint consultation, collective bargaining; labour tribunals and courts, are al within the ambit of industrial relations” .

Since employment relations is essentially influenced and shaped by economic, political and economic forces the State cannot afford to remain indifferent in the economic welfare. Form time to time the State intervenes by balancing the conflicting interests through the formulation of labour policies and enactment of labour laws. The dominance of free enterprise or market forces in a globalised world has continued to strengthen the bargaining position of management in the struggle between trade unions and employers of labour.

Legal Framework

Nigeria and other African countries have legal frameworks that regulate industrial relations. Apart from labour legislations there are Conventions and Treaties which have been ratified by many African countries. Article 23 of the Universal Declaration of Human Rights (UDHR) to which Nigeria and other African countries are signatories provides that: Everyone has the right to work, to free choice of employment, to just and favourable conditions of work, and to protection against unemployment;

“ Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary by other means of social protection; “ Everyone has the right to form and join trade unions for the protection of his interest.

Apart from ratifying the African Charter on Human and Peoples’ Right other treaties which have recognized the rights of workers African States have enshrined human rights in their Constitutions. However, such rights are observed in their breach by employers of labour including the Governments.

The challenges which threaten employment relations in Africa include: insecurity, gender and racial discrimination. It is pertinent to examine the response of labour laws and the courts to emerging trends in employment relations in Africa.

Employment with Statutory Flavour

The employment of civil servants and public officials including university employees has been said to enjoy “statutory flavour”. This, in effect, means that such staff cannot have their employment determined without due process. In Oloruntoba Oju & Others v Abdul_Raheem & Others (2009) 26 WRN 1 the Nigerian Supreme Court held that administrative, academic and professional staff of the University of Ilorin are guaranteed fair hearing before their appointment is terminated. See also the case of Olufeagba v Abdul_Raheem (2010) 17 WRN 23.

However, employers in the private sector whose employment is regulated by the common law are not entitled to be accorded fair hearing with respect to the determination of their employment. The principle of “hire and fire” is recognized in the Labour Act (Cap) Laws of the Federation of Nigeria 2004. In the case of Longe v First Bank PLC (2006) 3 NWLR (PT 967) 228 at 256 where it was recognized that the removal of the appellant was illegal as it failed comply with the provision of the Companies and Allied Matters Act Nigerian Courts have recognized the right of workers in the private sector not to be subject to unfair dismissals.

In Moatswi & Anor. V. Fencing Centre(Pty) Ltd. (2004) AHRLR 131 the Industrial Court of Botswana found the dismissal of two employees with procedurally and substantively unfair and ordered that they be paid compensation in terms of the Trade Disputes Act (CAP 48:02) which permits the Corut to take various factors into account in determining the amount of compensation payable to the deserving workers.

Right to Challenge Economic Policies

All African States have ratified the African Charter on Human and Peoples Rights which recognizes the right of all persons to freedom of assembly and expression. Member States of the African Union have also enshrined a Bill of Rights in their Constitutions. But the right of workers to protest against official policies has been restricted to employment related matters. In Adams Oshiomole v Federal Government of Nigeria (2007) 21 WRN 100 the Court of Appeal held that the industrial action embarked upon by the Nigeria Labour Congress to protest incessant fuel hike was illegal as the right of Nigerian workers to free assembly and freedom of association cannot be exercised outside the purview of the Trade Dispute Act.

Happily, the Court of Appeal has departed from the Oshiomole’s case when it held in the case of the Inspector_General of Police v. All Nigeria Peoples Party (2008) 12 WRN 65 that all Nigerian citizens have the fundamental right to demonstrate against the policies of government considered inimical to their interests. The decision was influenced by the verdict of the Supreme Court of Ghana in the case of New Patriotic Party v Inspector General of Police (2000) HRLRA 1 .

Dismissal of Workers with HIV

In recent time many workers who are hiv_positive have had their employment terminated. In Haffman V. South African Airways (2001) AHRLR 186 the constitutionality of the South African Airways’ practice of refusing to employ as cabin attendants people who are living with the Human Immuned Deficiency Virus (HIV). In striking down the policy the constitutional Court of South Africa held inter alia: “Our treatment of people who are HIV positive must be based on reasoned and medically sound judgments. They must be protected against prejudice and stereotyping. We must combat erroneous, but nevertheless prevalent, perceptions about HIV. The fact that some people who are HIV positive may, under certain circumstances, be unsuitable for employment as cabin attendants does not justify a blanket exclusion from the position cabin attendant of all people who are HIV positive.”

Discriminatory Practice Against Working Women

Notwithstanding the Constitutional ban on discrimination in all its ramifications women are subjected to sexual harassment and other discriminatory practices in Africa. Owing to the patriarchal nature of most African societies labour policies and laws have failed to address gender inequality. Labour laws in most African States prohibit women from being employed in industrial and agricultural undertaking positions, except in nursing or supervisory management positions and are not being employed in underground manual work or mines. (Section 55 and 56 of the Labour Act) It has been rightly observed that such provisions of the law “restrict employment opportunities for women”

Young girls are deliberately recruited by banks and given impossible targets to attract deposits from rich businessmen. The confirmation of the appointment of such female staff is subject to performance! In the police service and other law enforcement agencies women are not allowed to contract any marriage for a number of years after their recruitment. Paragraph 124 of the Regulations made pursuant to the Nigeria Police Act states as follows:

“A woman police officer who desirous of marrying must first apply in writing to the Commissioner of Police for the State Police Command in which she is serving, requesting permission to marry and giving the name, address, and occupation of the person she intends to marry. Permission will be granted for the marriage if the intended husband is of good character and the woman police officer has served in the Force for a period of not less than 3 years.”

The above provision of the law is currently being challenged in the Lagos High Court by the Women Empowerment and Legal Aid (WELA) in the light of the case of Mojekwu v Mojekwu (1996) where the Court of Appeal held that any customary law or practice which discriminates against women contrary to the Beijing Declaration is illegal and unconstitutional. Speaking for the Court Justice Niki Tobi stated:

“All human beings _ male and female _ are born into a free world and are expected to participate freely, without any inhibition on ground of sex, and that is constitutional. Any form of societal discrimination on grounds of sex apart from being unconstitutional, is antithesis to a societal built on the tenets of democracy which we have freely chosen as people.”

The decision of the Nigerian Courts was largely influenced by the case of Attorney_General of Botswana v. Unity Dow (1998) 1 HRLRA 1 where Aguda J.A. held as follows: “In my view there is clear obligation on this country like on all other African States signatories to the Charter to ensure the elimination of every discrimination against their women folk”.

In Societe des Femmes Tchadiennes Transitaires v. Ministere des Finances (2005) AHRLR 104 the Chadian Supreme Court ordered the suspension of the execution of the official directive concerning the banning of entry to customs offices of women. It was the view of the Court that the orde violated Article 13 of constitutional law 08/PR/05 of 15 July 2005 that stipulates that “Chadians of either sex have the same rights and the same duties”.

FDI and Labour Issues

Foreigners have found haven of business in Africa. Most Asian countries particularly China have found new home in Africa. We are not unmindful of a host of advantages of FDI such as domestic capital, transfer of technology, knowledge and skills, promotion of competition and innovation; and enhancing export performance. Despite these advantages, there are other dark sides of FDI in Africa. Apart from poor employment relations, there are issues of tax avoidance, abusive transfer, transfer of polluting activities and technology, excessive influence on economic affairs with possible negative effect on industrial development and national security.

Chinese firms in Nigeria have been criticized for being “closed” as they hardly employ local experts. They mal_treat their workers. Reports have it that conditions of employment of Nigerians in Chinese firms neither conform with the Nigeria labour laws nor to that of the International Labour Organization (ILO). It is not only Chinese firms that are guilty of these abnormalities; other foreign firms treat African workers with contempt. They employ youths as casual labourers, working under inhumane conditions. Where they threaten to protest poor working conditions, their employers bring African security men to disperse them violently, these sometime results in death of some of the protesters.

Workers Right to Minimum Wage

The right of workers to living national minimum wage recognized by law is often observed in breach by most African States. In the midst of official profligacy and corruption workers are paid starvation wages. Just recently, Kenyan lawmakers jacked up their salary to $14,583 per month while the minimum wage stands at $69.17. The Nigerian legislators who are the highest paid in the world have refused to pass into law the bill for the national minimum wage of N18,000.00 ($120) per month.

In the face of official corruption, capital flights and payment of huge debts, the budgets of most African States cannot fund adequate remuneration and pension for workers. Therefore, contrary to the regular payments, salaries and allowances stipulated by the Labour Laws it is not uncommon for governments and other employers of labour to refuse to pay workers entitlements for several months.

The Role of Industrial Courts

In order to ensure that conflicts are not subjected to undue delay in the regular courts African States have established specialized tribunals and courts for a quick resolution of trade disputes and other labour matters. Until recently, the courts were constituted by representatives of the government, employers and trade unions.

In Nigeria, while workers are represented at the Industrial Arbitration Panel that is no longer the case in the National Industrial Court which is now peopled by judges. Lawyers who appear before the judges wear wigs and gowns. The rules of the court are similar to those of the High Courts. The National Industrial Court has been elevated to a court of record in the Amended Constitution of Nigeria. Not unexpectedly, the judgments and other decisions of the court largely reflect the aspirations and wishes of the ruling class.

Collective Bargaining

Collective bargaining is gaining ground in some countries of Africa, though we are still far from achieving the ultimate goal of ensuring dispute_free employment relation. There are significant developments in the legal and institutional frameworks for collective bargaining in some African countries. A number of countries have created new industrial relations institutions to encourage collective bargaining and its smooth functioning such as dispute resolution agencies. An example of such institution is Comite National du Dialogue Social (National Social Dialogue Committee) in Senegal.

Collective bargaining has run into hitch in some countries due largely to a relatively small percentage of formal wage employment. Majority of workers, in these countries, work in the informal sector (economy) or unpaid work in the rural sector. Again, trade unions tend to be fragmented and relatively weak in some countries. Governments muzzle them and do not allow unions to thrive. Former Nigerian President, Olusegun Obasanjo tried to decentralize labour unions in order to weaken them, Ghana has gone ahead to put in place the National Tripartite Commission that has the responsibility of establishing minimum conditions which serve as a reference point for bargaining at the enterprise level.

In South Africa, formal wage employment is significant, sectoral bargaining, through either Bargaining Council or non_statutory fora, plays an important role in regulating terms and conditions. Bargaining Council agreements can be extended to non_parties (enterprises that are not members of the employers’ association) within the particular scope of the Council. The Bargaining Councils in South Africa often provide procedures by which enterprises can apply for exemptions from the agreements, based on criteria such as the size of the business or undue financial hardship.

Despite the creation of dispute resolution institutions in Africa, labour disputes are still on the increase. A number of factors are responsible for labour crises in Africa. The unstable and volatile political climate does not present a promising outlook for the use of collective bargaining as a means to facilitate the development of sound and productive relations and improve working conditions. Zimbabwe is a good example where hundreds of workers are moving out of the country due to political instability. Insincerity on the part of these institutions is another factor that has drawn the workability of these institutions backward. Many African workers also do not work in the formal sector.

Renewed Attacks on Trade Unions

In recent time the right of Nigerians to organize any form of protest against the Government appears to have been outlawed. While the locus standi of the Nigeria Labour Congress to question the rash of increases of petroleum products has been challenged rallies and marches organized by workers and other civil society groups have been violently attacked by the police.

In order to effectively weaken the trade unions by depriving them of check_off dues the amended Trade Union Act has made membership of trade unions voluntary and deduction of check_off dues subject to the express consent of employees. Similarly, the contribution of certain percentage of check_off dues to registered federation of unions by affiliate unions is subject to the express authority of members of the affiliate unions. It would be recalled that the automatic deduction of check_off dues to senior staff unions was stopped in 1986 in a desperate move designed to destroy the Academic Staff Union of Universities (ASUU).

Furthermore, under the Trade Disputes Act the stiff penalties for acts calculated to disrupt the economy include imprisonment, fine or detention of workers and labour leaders as well as the proscription of the affected trade unions. But in spite of the ferocity of the Act and similar repressive decrees applied by the defunct military junta workers who provide essential services have always embarked on strike to press their demand for improved conditions of service. For instance, the sentence of life imprisonment imposed on the 11 NEPA staff in 1990 by the Babangida junta never deterred workers from engaging in industrial action.

Neither did the Teaching (Essential Services) Decree 1993 which made it a treasonable offence for teachers to engage in industrial action abolish strikes in the universities. Rather than weaken the ASUU the treason decree and the proscription of the union on four different occasions between 1988 and 1996 combined to strengthen it beyond the contemplation of the State. Today, the ASUU remains one of the most focused and organized trade unions in Africa.

Having said that I wish to submit that the amended Trade Union Act is discriminatory and unconstitutional since it is limited to the trade unions. If the payment of check_off dues by workers is optional why should the Legal Practitioners Act (Cap 207) Laws of the Federation of Nigeria, 1990 make it compulsory for lawyers to pay practicing fees annually? Why should similar laws require accountants, surveyors, engineers and other professionals to pay fees to their associations yearly? And why is payment of income tax compulsory? Should the payment of taxes not be left to the patriotic instinct of every citizen?

With respect to the decentralization of the labour movement why does the law recognize the Nigeria Bar Association, Nigerian Medical Association etc as central bodies in the country? Why are they not broken up so as to promote “internal democracy” in those organizations?

Strikes

Most of the time, strikes have worked effectively especially in public sector, but some labour leaders have sabotage the mechanism by collaborating with authorities to thwart the effort of other labour leaders. They have sold out on several occasions.

Strike is not only limited to Nigeria, workers across the continent embark on strike when felt aggrieved. Workers in South Africa embarked on strike that almost grounded the country immediately after the country hosted the world cup. In January this year, Zambian workers working with NFCA (a Chinese owned Mining Company) embarked on strike to protest the plan of the management outsourcing a contractor to carry out mining operations without informing the workers. Sometime, such strikes become violent where labour leaders want to ensure strict compliance. Labour rules and laws do not allow those in essential services to engage in strikes. They are exempted from embarking on strike. For example, Trade Union Act prohibits those working as security agents from going on strike. Attempts have been made by some policemen to call for strike recently in Nigeria, though they have not been able to achieve this but may be one day policemen and others working in security agencies may wake up and embark on strike in Nigeria or other African countries.

Seizure of Farmland in Zimbabwe

The seizure of lands from white farmers in Zimbabwe has been condemned by Western government and human rights organizations. In Mike Campbell & Others v Zimbabwe (2008) AHRLR 199 the Southern Development Corporation Tribunal held that the expropriation was discriminatory and illegal. Curiously, the Tribunal directed that compensation be paid to the affected farmers “regardless of how the farms were acquired”. It is my opinion that the failure of the Tribunal to examine how the farm lands were acquired by the white farmers affected the conclusion of the judgment.

As was the case in a number of colonized territories the farmlands were compulsively acquired from Africans “for public purpose” without any payment of compensation. The allocation of the lands to private farmers, whether white or black, became illegal as it was no longer for public purpose. In Amonitia v. MD, Ghana Telecommunications Co. (2006) 2 GMLR 69 at 110 the Supreme Court of Ghana held that “any public land acquired for a particular purpose or regarded as too large for the said purpose, then steps could be taken as happened in the WEIJA acquisitions to re_convey the land back to the pre_acquisition owners” .

No doubt, the manner of the expropriation of the farm lands by the party adherents was crude and illegal. But having regard to the illegal seizure of the lands from their owners and their illegal transfer to white farmers by the colonial regime the legal validity of section 16B of the Constitution of Zimbabwe (Amendment 17, 2005 with which the lands were acquired for agricultural purposes) cannot be seriously questioned.

Attacks on Migrant Workers

The brutal attacks on migrant African workers in South Africa in May 2008 led to the killing of 62 people, destruction of properties worth millions of dollars and displacement of several thousands of people. Although the xenophobic attacks were condemned by the South African government which promised to bring the perpetrators to justice no measure has been put in place to prevent a reoccurrence of the shameful incident. After all, the government has not addressed the underlying causes which include poor service delivery by the government, misconception of foreigners as constituting an economic threat to the nationals and poor immigration control” .

In spite of the prohibition of mass deportation of people by Article of the African Charter on Human and Peoples’ many African States engage in the illegal deportation of migrant workers from time to time. In 2005 about 50 nationals of Togo, Ghana and Nigeria were killed by security agencies in The Gambia. Young men and women from West Africa who try to travel to Europe through North Africa are rounded up and deported by Libya, Algeria and Morocco. Others are prosecuted and jailed without access to defence counsel.

The regional courts have not been of assistance with respect to the protection of the rights of migrant workers. In the case on the ground that Peter David v. Ambassador Uwechue (2010) CCJLR (PT 3) 134 the ECOWAS Court dismissed the action on the ground that the Court is not competent to adjudicate on cases of human rights violations brought against individuals. In Coordination Nationale Des Delegues Departmantau de la F’liere Café Lacao v. Cote d’ivoire (unreported) Suit No: ECW/CCJ/APP/02/2009 of 17 December 2009 the Plaintiff sought a declaration that the rights of its members to equitable renumeration and to equal treatment before the law guaranteed in the Universal Declaration of Human Rights had been violated. While conceding that the Plaintif was competent to file the action on behalf of cocoa and coffee producers the ECOWAS Corut insisted that there was a need to show a labour relationship in order to successfully invoke the right to equitable remuneration.

However, in Djotbali Talbai v. Federal Republic of Nigeria (Unreported) Suit No: ECW/CCJ/APP/10/01 of 28th January 2009 the Applicants who were foreign workers were arrested in a ship outside the territorial waters of Nigeria. The ECOWAS Court declared their prosecution illegal and awarded each of the 14 Applicants $42,000.00

Status of Contract Staff

In a bid to avoid paying appropriate remunerations and pension to staff companies have resorted to hiring “contract staff” or casual workers contrary to the provisions of the labour laws. In Nigeria, oil companies enter into questionable deals with police authorities to treat their security staff as supernumery police personnel. Such security guards are recruited by oil companies and trained for 3 months at the police college.

Upon the completion of the training programme the workers are informed that they have become police officials. Although work for the oil companies, their salaries are paid through the police. In Okon Johnson & Others v. Mobil Producing (Nig) Unlimited (unreported) Suit No: CA/C/47/2006 of 21st May, 2009 the Court of Appeal of Nigeria held that the Appellants are not policemen but security staff of the Respondent. The Respondent was specifically ordered to give the workers the name “Mobil Guards” or any other name showing or portraying them as security staff of Mobil provided that such name is not derogatory.

Conclusion

In concluding this paper it is submitted that the neo_liberal economic policies of most African States have had adverse effects on employment relations. In spite of the efforts of the industrial unions to defend the rights of workers through the Courts it is my view that African workers can no longer afford to leave politics to professional politicians. Therefore, workers and their unions have a duty to participate more actively in the politics of their countries. In the same vein, the industrial courts should have members of trade unions who will represent the interest of workers.