Observation (CEACR) - adoptée 1991, publiée 78ème session CIT (1991)

The Committee notes the information provided by the Government in its report and the discussion in the Conference Committee in 1990.

Article 1(a) of the Convention. 1. In previous comments the Committee noted that certain provisions of the 1979 Constitution, including provisions on fundamental rights relating to detention, and the right of peaceful assembly and association had been suspended or modified and that under the State Security (Detention of Persons) Decree No. 2 of 1984 persons could be detained for successive periods of three months (respectively six months following the amendment of the Decree), constitutional guaranties in this matter being suspended. The Committee had requested the Government to provide information on any sanctions provided for in case of non-compliance with the provisions suspending fundamental rights and on the conditions of detention of persons detained under Decree No. 2 of 1984. The Committee had further noted that a constitutional review committee had been established and a timetable for the political transition adopted.

The Committee notes with interest the adoption in 1989 of a new Constitution which will come into force on 1 October 1992. It also notes that the President may by Order appoint a date earlier than 1 October 1992 for the coming into force of any of the provisions of the Constitution and that the federal military Government may promulgate constitutional and transitional Decrees during the transition period (Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1989, sections 1 to 3).

The Committee notes that the new Constitution provides for the protection of fundamental rights, such as the right to freedom of thought, conscience, to freedom of expression and the press, the right of peaceful assembly and association (articles 32 to 41) and for the state social order to be founded on ideals of freedom, equality and justice.

The Committee notes the Government's indication in its report that the ban on freedom of association and assembly has been lifted as well as the ban on political activities and that two political parties emerged, namely the Social Democratic Party and the National Republican Convention. The Committee notes, however, that only two political parties can be established under article 220 of the new Constitution and were in fact allowed to compete in the 1990 local elections which were the first political elections since 1983.

The Committee hopes that the Government will provide information on any legislative or statutory provisions adopted under the provisions of the new Constitution when in force, in relation to the expression of views, freedom of association and assembly, and political activities. Referring in this context to the restrictions on the establishment of political parties, the Committee recalls that the Convention prohibits the use of any form of forced or compulsory labour as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. The Committee asks the Government to indicate the measures taken or envisaged to ensure that the persons protected by the Convention may not be punished by penalties which would involve an obligation to work.

The Committee further notes that under the State Security (Detention of Persons) (Amendment) Decree of 25 January 1990 sent by the Government with its report, the successive periods of detention of six months have been substituted by periods of six weeks and a Detention of Persons Review Panel has been established. The Committee hopes again that the Government will provide a copy of any Act or regulation governing the conditions of detention of persons detained under Decree No. 2 of 1984 as amended.

Article 1(c) and (d). 2. In previous comments, the Committee noted that under section 81(1)(b) and (c) of the Labour Decree, 1974, a court may direct fulfilment of a contract of employment and posting of security for the due performance of so much of the contract as remains unperformed, and a person failing to comply with such direction may be committed to prison. The Committee had noted the Government's indication that committal to prison in such circumstances does not usually involve an obligation to perform work, but that efforts would, however, be made to submit section 81(1)(b) and (c) of the Labour Decree, 1974 to the National Advisory Council for necessary amendments.

The Committee notes the Government's statement in its report that the sections in question have been submitted to the National Advisory Council for necessary review and amendments. The Committee hopes that the Government will soon be in a position to report on measures adopted to ensure that no sanctions which may involve an obligation to perform work are provided for breaches of labour discipline or for taking part in a strike.

3. In previous comments, the Committee referred to section 117(b), (c) and (e) of the Merchant Shipping Act, under which seamen are liable to imprisonment involving an obligation to work for breaches of labour discipline even in the absence of a danger to the safety of the ship or of persons. The Committee hopes that in this regard too, the necessary measures will be taken to ensure the observance of the Convention, and that the Government will soon be able to indicate the amendments adopted.

Article 1(d). 4. The Committee previously noted that under section 13(1) and (2) of the Trade Disputes Decree, No. 7 of 1976, participation in strikes may be punished with imprisonment involving an obligation to work in the following cases: (a) where the mediation and reporting procedure imposed by sections 3 and 4 of the Decree for all industrial disputes has not been complied with; (b) where arbitration procedures under sections 7 to 9 of the Decree, which shall be initiated by the Federal Commissioner whenever conciliation attempts have failed, have led to an award by the arbitration tribunal and that award has become binding; (c) when the Federal Commissioner has referred the dispute to the National Industrial Court; (d) when the National Industrial Court has issued an award on the reference.

The Committee noted the Government's statement that section 13 merely imposes on an employer or worker an obligation to observe and exhaust prescribed procedures before engaging in a strike or lock-out. In this connection, the Committee referred to paragraph 130 of its 1979 General Survey on the Abolition of Forced Labour, where it explained that the imposition of a temporary restriction on the right to strike until all facilities for negotiation and conciliation have been exhausted and while voluntary arbitration procedures are in progress, are to be distinguished from compulsory arbitration systems which result in binding awards allowing practically all strikes to be prohibited or rapidly stopped. When such systems provide for sanctions involving compulsory labour, they should be limited to sectors and types of employment where restrictions may be imposed on the right to strike itself, that is, to essential services in the strict sense of the term (i.e. services whose interruption would endanger the life, personal safety or health of the whole or part of the population). The Committee further noted that the list of essential services included in Schedule 1 to Decree No. 7 of 1976 and in section 8 of the Trade Disputes (Essential Services) Decree No. 23 of 1976 is wider and covers for example the Central Bank and banking business. Noting the Government's indication in its report that the provisions of section 13(1) and (2) of the Trade Disputes Decree No. 7 of 1976 have been submitted to the National Labour Advisory Council for necessary review and amendment, the Committee expresses the hope that necessary action will soon be taken to ensure the observance of the Convention in this regard and that the Government will indicate the measures taken or contemplated to amend the legislative provisions referred to.