Rapport intérimaire - Rapport No. 295, Novembre 1994

1. 567. In a communication dated 18 August 1994, the International Confederation of Free Trade Unions (ICFTU) submitted a complaint of violations of freedom of association against the Government of Nigeria. The Organization of African Trade Union Unity (OATUU), and the World Confederation of Labour also presented complaints concerning the same allegations on 19 and 26 August 1994 respectively. Additional information was provided by the ICFTU in a communication dated 16 September 1994.
2. 568. The Government sent its observations on the case in communications dated 19 September and 18 October 1994.
3. 569. Nigeria has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 570. In its complaint of 18 August 1994, the ICFTU alleges that the military government had announced the removal of the trade union leadership of the Nigerian Labour Congress (NLC), and the oilworkers' unions, the National Union of Petroleum and Natural Gas Workers (NUPENG), the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) and their replacement by government-appointed administrators in violation of Convention No. 87. The union offices were sealed off and surrounded by police and all telephone lines were cut, thus rendering all normal trade union activities impossible. The ICFTU contends that these arbitrary actions contravene Article 3 of Convention No. 87.
2. 571. In its communication of 19 August 1994, the OATUU, to which the Nigerian Labour Congress is affiliated, similarly made a complaint concerning the dissolution of the executive councils of the NLC and the oilworkers' unions and added that these three organizations were banished for having undertaken strike action. The World Confederation of Labour also presented a complaint concerning the above allegations.
3. 572. In a further communication dated 16 September 1994, the ICFTU provided additional information with respect to the alleged violations in Nigeria. It recalls that NUPENG and PENGASSAN, both affiliated to the NLC, had gone on strike at the beginning of July 1994 protesting both the situation in the oil industry and the results of the Nigeria elections of June 1993 which were annulled by the military regime. On 6 July 1994, the complainant federation alleges that Frank Kokori, NUPENG General Secretary, was arrested and taken to an unknown destination.
4. 573. At the PENGASSAN Emergency National Executive Council meeting of 8 July 1994, numerous grievances concerning the situation in the oil industry were expressed including: persistent harassment and intimidation of union members by members of the armed forces; the termination of employment at gun-point of union members in Prekla Seismos, Dresser Magcober, United Geophysical and Universal Catering Services Ltd. and the arrest and detention of union branch chairman, Mr. Elregha; the Government's refusal to implement the award by the National Industrial Court (NIC) on the remuneration of workers at the Petroleum Training Institute (PTI Effurun); the inability of Government to live up to its social responsibilities of adequately funding the educational, health and medical institutions in the country and the continued delay in the payment of salaries of teachers, civil servants, the police and the armed forces; and the continuous neglect, intimidation, harassment and destruction of the oil-producing communities by government agents.
5. 574. Among PENGASSAN's demands were the call for Government: to withdraw the ministerial circular of 17 January 1994 entitled "Release of oil industry workers from employment" which empowers employers in the oil industry to terminate the employment of Nigerian workers and replace them with expatriates; to implement all aspects of the collective agreements binding on the managements of the Nigeria National Petroleum Corporation (NNPC) with other producing, marketing and service companies and with PENGASSAN members; to grant NNPC autonomy to take strategic and tactical investment decisions that will enhance profitability and continuity and permit sound assets replacement and personnel succession policies; to redress all harassment and intimidation of union members by the police and the armed forces, including the termination of union members' in Prakla Seismos and the arrest of the branch chairman, Mr. Elregha.
6. 575. According to the complainant organization, the NLC called a strike on 3 August 1994 in support of the oilworkers' unions strike but called the strike off after the second day in order to negotiate with the authorities.
7. 576. On 17 August, while announcing the dissolution of the executive councils of the NLC, NUPENG and PENGASSAN, the Nigerian Head of State, General Sani Abacha ordered the striking workers to return to work within one week or face dismissal. Reports were later made that the Minister of Labour sacked striking workers on the deadline, 25 August. Following the sealing off of the headquarters of NUPENG, PENGASSAN and the NLC and their being surrounded by the police, several union leaders went into hiding. NUPENG and PENGASSAN issued a joint statement on 18 August reiterating their earlier demands relating to the oil industry and calling for respect for democracy in Nigeria.
8. 577. On 26 August, the unions reported that a number of their members and officials had been arrested including: Mr. F.A. Addo, 3rd Vice-President of PENGASSAN and Port Harcourt Zonal Chairman; Mr. F. Aidelomon, Chairman of the Pipeline and Products Marketing Company branch of PENGASSAN; and Mr. Frank Kokori, General Secretary of NUPENG. According to the complainant federation, although there were witnesses to the arrest, the army denied that Mr. Kokori was being held and offered a reward of US$10,000 for his capture.
9. 578. The complainant also contends that the check-off facilities of NUPENG and PENGASSAN were suspended by the authorities. NUPENG and PENGASSAN then challenged the Government Order dissolving the unions' leadership in the Federal High Court of Nigeria and, on 23 August, the court suspended the Government Order for one week pending the oil unions' appeal which was due to be heard on 31 August and subsequently postponed.
10. 579. On 25 August, the military regime enacted two decrees to legalize the dissolution of the unions' executives at national and state levels. The decrees further provided that the courts were prohibited from hearing any case arising from the dissolution.
11. 580. On 26 August, the General Secretary of PENGASSAN, M.G. Dabibi, reported that all PENGASSAN union offices nationwide had been taken over by armed military and anti-riot police, union officials of NUPENG and PENGASSAN had been arrested and many other union officials and staff went into hiding.
12. 581. A challenge made by the NLC to the Government Order dissolving the unions' executives was reportedly disallowed by the Federal High Court on 6 September on the grounds that the court had no jurisdiction to hear the case. PENGASSAN reported that, at the beginning of September, four branch leaders in state-owned refineries and the fuel distribution network were under arrest for strike activities. The President of the NLC, Pascal Bayfau, was reported to have been interrogated by the police during the first week of September.
13. 582. The complainant organization reports that NUPENG and PENGASSAN called off the strike on 6 September. On 6 and 7 September, additional decrees were enacted by the Government stripping the courts of the power to challenge the Government's authority.
14. 583. On 7 September, PENGASSAN reported further arrests and detentions of PENGASSAN officials and members. The union's bank account had been frozen and union offices were still occupied by security forces. The union continued to operate underground.

B. The Government's reply

1. 584. In its communication of 19 September 1994, the Government first declares that Nigeria has a long history of free trade union movement and tripartism and collective bargaining have been the cornerstones of Nigeria's industrial relations practice. According to the Government, Nigerian trade unions have enjoyed freedom of association and there has been and still is a good rapport between the unions and the Government.
2. 585. With respect to the specific allegations, the Government indicates that the Nigerian Government did not deliberately set out to arrest and detain trade union leaders. Those arrested committed criminal offences and being trade unionists did not empower them to commit any offence. The Government asserts that Mr. Frank Kokori, the General Secretary of NUPENG, was never arrested and adds that his so-called detention was given undue publicity in both the national and international media which orchestrated the arrest and did not apologize to their readers when they found out that they had misinformed them when they realized that Mr. Kokori faked his arrest.
3. 586. The Government further asserts that, on 4 July 1994, the National Executive of NUPENG called the workers in the oil industry out on strike without following the procedure laid down by the law. In spite of the illegality of their action, the Ministry of Labour and Productivity immediately invited the Executive for a meeting and, when they did not turn up, it referred the issues to the Industrial Arbitration Panel (IAP). The Executive did not appear at the IAP in accordance with the Trade Disputes Act despite the summons served on them, which is in itself unlawful conduct. Later, the union sent a memorandum in which they made a number of demands on the Government. Discussion was held during which, according to the Government, all the economic issues were resolved. Two issues which the Government could not resolve, however, related to the demand for unconditional release of Chief M.K.O. Abiola and to install him as President of Nigeria in place of the present Head of State.
4. 587. The Government states that, for seven weeks, under the active support of external bodies and the politically ambitious leadership of their executive, NUPENG engaged in the mass destruction of oil equipment, refineries, pipelines and personal properties of the majority of those who opposed the strike which has now brought the economic life of the country to a standstill. With the resulting shortage of fuel, transport was brought to a halt and even fresh foods were destroyed because there were no means to convey them to the market. Despite the daily announcements in the media concerning the effect of this illegal strike on the life of the people and the pressures placed on Kokori and his executives by the suffering masses, they did not listen. Instead Kokori disappeared to give the impression he had been arrested.
5. 588. The Government states that all efforts made by it to locate Kokori to discuss with him and the unions were unsuccessful, particularly when the unions did not know, as they claimed, where Kokori was. Furthermore, Kokori conceded that he and his men were aware that the strike was illegal and that political issues were outside the union's competence vis-à-vis their constitution and the trade union laws. The Government asserts that the union relegated to the background the welfare of the workers and, by its illegal action, brought more suffering than good to bear on the workers.
6. 589. The Government then refers to ILO principles of freedom of association with respect to the right to strike and claims that they are compatible with the Nigerian Trade Disputes (Essential Services) Act (No. 23) of 1976 which provides in section 2(1) that:
   • Any employer or official of an association of employers or any official of a trade union or any person, not being an official of a trade union, who in any way performs or assumes a leadership role in any such trade union or faction thereof and (a) who is or has been engaged in acts calculated to disrupt the smooth running of any essential service; or (b) has, where applicable, wilfully failed to comply with the procedure specified in the Trade Disputes Act in relation to the reporting and settlement of trade disputes, shall be guilty of an offence under this Act.
7. 590. The Government has indicated that it has not acted outside these provisions. While section 1 of the Trade Disputes Act gives the Head of State the power to proscribe any union that breaches the law, the unions in question were not proscribed. Their recalcitrant executives were dissolved which the Government reiterates is a recognized and lawful function of the Government. The Government also refers to Rule 30(b) of the Constitution of the PENGASSAN union which provides: "The Association can also be dissolved by the order of the Federal Government or on the Orders of a Court which is competent to do so" (subject to the usual court process of appeal, etc.).
8. 591. The Government indicates that, in accordance with ILO principles, rather than invoking these provisions and proscribing or dissolving the unions, it opted for negotiations and exhausted all avenues for amicable resolution of the disputes. When these failed, the Government dissolved the leadership and not the entire body.
9. 592. The Government concludes by asserting that Nigeria holds the values of the International Labour Organization in high esteem and will not do anything to purposely undermine those values. It expresses its commitment to the principles of freedom of association and indicates that it will take all the necessary steps to sustain that freedom within the limits of the labour laws of the land while recalling that the unions should take cognizance of Article 8 of Convention No. 87.
10. 593. In its communication dated 18 October 1994, the Government reiterates in slightly greater detail its previous arguments concerning the political nature of the strike, its illegality due to the violation of existing procedures and the fact that it took place in an essential service as determined by Nigerian law, and the wanton destruction of property carried out by NUPENG during the strike.
11. 594. The Government further states that the strike was not of a national character and there was no consensus for calling the strike. The northern and eastern zones and the NNPC sector did not participate in the strike. Finally, the Government adds that there was no serious industrial dispute with the employers since the economic demands were quickly apprehended and addressed.
12. 595. The Government emphasizes the importance of the economic and financial losses incurred to the nation by the strike action in the oil sector which is the mainstay of the economy. In order to arrest the creeping collapse of the Nigerian economy, and after numerous efforts to negotiate, it was left with no option but to dissolve the executives of the NLC and the two oil unions while the unions' bodies were left intact to thrive and function.
13. 596. The Government further states that it was not true that any member of these unions was detained either during or after the crisis and that Chief Kokori himself asserted that he went into hiding.
14. 597. The Government indicates that a memo was received on 8 October 1994 from 15 industrial unions, acting on behalf of the 41 industrial unions affiliated to the NLC, in which some demands were made, in particular the holding of an extraordinary conference of the Congress to elect new officials. The unions' representatives were met by the Government and the issues raised were discussed with a view to drawing up a programme which would include the audit of the accounts of the NLC which had not been audited since 1988. The Government asserts that as soon as the accounts are audited, arrangements will be made for elections. Part of the programme includes setting up three committees of union members, namely, the Constitution Review Committee and the Conference and Election Committees. Any member of the old leadership of the NLC is eligible to contest provided that he is not facing criminal charges (e.g. burning down oil installations, personal property, etc.). Any union leader who organized a strike action is not regarded as a criminal and is free to contest an election. Finally, the Government reiterates that it has so far not detained any trade union leader.

C. The Committee's conclusions

1. 598. The Committee notes with concern that the allegations in the present case concern the dissolution of the trade union executives of three trade unions (the NLC, NUPENG and PENGASSAN) and their replacement with government-appointed administrators, as well as reported arrests of certain officials and members of NUPENG and PENGASSAN, in violation of Convention No. 87 and the principles of freedom of association.
2. 599. As concerns the dissolution of the executive councils of the NLC, NUPENG and PENGASSAN, the Committee takes note of the Nigerian Labour Congress (Dissolution of National Executive) Decree No. 9 and the NUPENG and PENGASSAN (Dissolution of Executive Councils) Decree No. 10, both of 18 August 1994. The Committee notes that, according to these decrees and the information provided by the Government, these unions were dissolved for having persistently threatened to call for nation-wide strike actions over political matters and for having used union funds to carry out such strikes contrary to clear provisions and objects contained in their constitutions and enabling laws. The Committee also notes the contention in the Government's reply and in the preambles to these decrees that these strikes have been calculated to sabotage a vital and essential sector of the economy and have resulted in untold hardship to law-abiding citizens and in incalculable damage to the economy contrary to the provisions of the Trade Disputes (Essential Services) Act. The Committee further notes that section 2(1) and (2) of these Decrees provide for the appointment by the Minister of Employment, Labour and Productivity of an Administrator and Secretary to run the affairs of these unions until such a time as the appropriate authority may direct otherwise, their functions and powers to be specified by the Minister.
3. 600. While noting the Government's indication that it did not actually dissolve the unions, but only their executive councils, the Committee must point out that the removal of trade union leaders from office is a serious infringement of the free exercise of trade union rights and draws the Government's attention to the desirability of refraining from any governmental interference in the performance by trade union leaders of trade union functions to which they have been freely elected by the members of the trade unions (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 476).
4. 601. Furthermore, the Committee notes that section 3 of Decrees Nos. 9 and 10 provide that no suit or any other proceedings whatsoever shall lie at the instance of any person aggrieved in respect of any act committed by any person in compliance with these Decrees and that any question as to whether these Decrees are in contravention of Chapter IV of the Constitution concerning fundamental rights shall not be inquired into by any court of law. In this regard, the Committee recalls that it is essential that measures for the dismissal, suspension or disqualification of trade union officials as a penalty provided by law should not become applicable except on the basis of a sentence pronounced by the competent judicial authority. The prohibition of trade union activities in the case of trade union leaders is a particularly serious action and should be decided by the courts in order to ensure all rights of defence (see, Digest, op. cit., paras. 480 and 481).
5. 602. The Committee notes the indication in the Government's reply that its actions were taken in view of the fact that the strike was called over political matters and, as indicated in the Decrees, was calculated to sabotage a vital and essential sector of the economy. It also notes, however, that, according to the complainants, the strike in question was undertaken in protest both of the situation in the oil industry and of the results of the June 1993 election. Furthermore, the Committee notes that, according to the additional information provided by the ICFTU, among PENGASSAN's demands at the time of the strike were the withdrawal of a circular permitting the termination of employment of Nigerian workers in the oil industry, the implementation of collective agreements, the autonomy of the NNPC in strategic and tactical investment decisions and the redress of harassment and intimidation by members of the police and the armed forces against union members.
6. 603. As concerns the political nature of the strike, while the Committee has always held that strikes of a purely political nature do not fall within the scope of the principles of freedom of association, in this case, it would appear that a substantial part of the claims of the NLC, PENGASSAN and NUPENG were of a social and economic nature, in particular as concerns the situation in the oil industry. The Committee therefore draws the Government's attention to the principle that organizations responsible for defending workers' socio-economic and occupational interests should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standards of living (see, General Survey on Freedom of Association and Collective Bargaining, ILC, 81st Session, 1994, para. 165). Accordingly, the right to strike should not be limited to industrial disputes that are likely to be resolved through the signing of a collective agreement; workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members' interests (Digest, op. cit., para. 388).
7. 604. As concerns the Government's reference to these strikes as being calculated to sabotage a vital and essential sector of the economy, contrary to the Nigerian Trade Disputes (Essential Services) Act and the limitations of ILO principles of freedom of association with respect to the right to strike in essential services, the Committee first points out that the criterion used by it and by the Committee of Experts on the Application of Conventions and Recommendations in determining whether any service is essential in the strict sense of the term is whether the service in question is one the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see, General Survey, op. cit., para. 159). The Committee is therefore of the view that the withdrawal of services by workers in petrol-producing installations, while possibly leading to a close-down in production and serious consequences in the long term for the national economy, would not endanger the life, personal safety or health of the whole or part of the population and therefore cannot be considered as essential services in the strict sense of the term (see, Digest, op. cit., para. 402 and 238th Report, para. 185 (Case No. 1175)). The Committee points out that it would appear legitimate that a minimum service be maintained in the event of a strike the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population. Such a minimum service should be confined to operations that are strictly necessary to avoid endangering the life, personal safety or health of the whole or part of the population; in addition, workers' organizations should be able to participate in defining such a service in the same way as employers and the public authorities. (See, Digest, op. cit., para. 415.)
8. 605. The Committee can therefore only conclude that the removal of the national executive council members of the NLC, NUPENG and PENGASSAN from office by government authorities is a serious infringement of the free exercise of trade union rights. The Committee urges the Government to repeal immediately Decrees Nos. 9 and 10 which provide for the dissolution of their executives, their replacement by government-appointed administrators and indemnity and exclusion from any court proceedings challenging the Decrees and recalls the importance of refraining from any further governmental interference in the performance by trade union leaders of trade union functions to which they have been freely elected by the members of their unions. It also requests the Government to allow elected officials to exercise their trade union functions once again. At the same time, noting the Government's reference to acts of destruction of property and the workers' obligation under Article 8 of Convention No. 87, the Committee draws the complainants' organizations' attention to the principle according to which workers and their organizations shall respect the law of the land, which in turn must not violate the principles of freedom of association.
9. 606. The Committee notes that the Government has not replied to the specific allegations of the sealing off of the unions' headquarters, surrounding them with police, the freezing of union bank accounts and the suspension of check-off facilities. The Committee recalls in this regard that the occupation of trade union premises and the freezing of union bank accounts may constitute a serious interference by the authorities in trade union activities (Digest, op. cit., para. 202). Moreover, the occupation or sealing off of trade union premises should be subject to independent judicial review before being undertaken by the authorities in view of the significant risk that such measures may paralyse trade union activities (see, General Survey, op. cit., para. 40). Finally, the Committee recalls that the withdrawal of check-off facilities which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided (Digest, op. cit., para. 325). The Government is therefore requested to take the necessary measures to restore access to their respective trade union premises and bank accounts to the Executive Councils of the NLC, NUPENG and PENGASSAN and to withdraw the suspension of their check-off facilities. The Government is requested to keep the Committee informed of any measures taken in this respect.
10. 607. The Committee notes with concern the contradiction which exists between the complainants' allegations that Mr. Kokori was arrested and the Government's statement that Mr. Kokori faked his arrest. The Committee also notes that, according to the complainant, the army having denied that Mr. Kokori was arrested, subsequently offered a reward of US$10,000 for his capture. The Committee further notes the Government's statement in its communication of 19 September that it did not deliberately set out to arrest and detain trade union leaders and that those arrested committed criminal offences, while in its communication of 18 October it states that no union leaders were detained either during or after the crisis. The Committee first recalls the importance it places on the principle according to which the arrest - even if only briefly - of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association (Digest, op. cit., para. 88). Noting that the Government had indicated in this first communication that certain trade unionists who had committed crimes had been arrested, the Committee requests the Government to provide further information concerning the unionists arrested and the charges, if any, brought against them. In particular, the Government is requested to communicate its observations concerning the alleged arrests of Mr. F.A. Addo, 3rd Vice-President of PENGASSAN and Port Harcourt Zonal Chairman, and Mr. F. Aidelomon, Chairman of the Pipeline and Products Marketing Company branch of PENGASSAN. Furthermore, noting that the arrest and detention of PENGASSAN union branch chairman Mr. Elregha figured among the grievances expressed at the PENGASSAN Emergency National Executive Council meeting of 8 July 1994, the Committee requests the Government to indicate whether Mr. Elregha is still being detained and the charges, if any brought against him.
11. 608. Finally, as concerns the reported dismissals of striking workers in the oil industry by the Minister of Labour, the Committee recalls that, when trade unionists or union leaders are dismissed for having exercised the right to strike, it can only conclude that they have been punished for their trade union activities and have been discriminated against contrary to Article 1 of Convention No. 98 and the principles of freedom of association (see Digest, op. cit., paras. 443 and 444). As the Government had not replied to these allegations, the Committee urges the Government to take measures to establish an impartial inquiry with a view to ascertaining the oil workers who were dismissed for exercising their right to strike and to ensure that they are reinstated in their posts. The Government is requested to keep the Committee informed of the action taken in this regard.
12. 609. The Committee notes from the information communicated by the Government on 18 October that it has met with some union representatives affiliated to the NLC with a view to drawing up a programme for new elections which would include an audit of the accounts of the NLC which had not been audited since 1988, and the creation of a Constitution Review Committee. It would appear that the need for new elections stems at least in part from the fact that the executive council of the NLC had been dissolved by executive decree. As to the Government's current participation in organizing a programme of elections, the Committee recalls that the right of workers' organizations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to promote effectively the interests of their members. For this right to be fully acknowledged, it is essential that the public authorities refrain from any intervention which might impair the exercise of this right, whether it be in determining conditions of eligibility of leaders or in the conduct of the elections themselves (Digest, op. cit., para. 295).
13. 610. As concerns the Government's declaration that any member of the old leadership of the NLC who is not facing criminal charges, such as for the destruction of property, may contest the elections, the Committee first notes with concern that the Government has referred in this respect to those facing charges and not to those who have actually been convicted of a criminal offence. Furthermore, the Committee recalls that the disqualification for trade union office of a person convicted of a criminal offence may be compatible with the principles of freedom of association in so far as the conviction concerns an act the nature of which is such as to call into question the integrity of the person concerned and is such as to be prejudicial to the performance of trade union duties (see General Survey, op. cit., para. 120).
14. 611. As concerns the auditing of the NLC accounts, the Committee has considered that measures of administrative control over the management, such as financial audits and investigations, should be applied only in exceptional cases, when justified by grave circumstances (for instance, presumed irregularities in the annual statement or irregularities reported by members of the organization), in order to avoid any discrimination between one trade union and another and to preclude the danger of excessive intervention by the authorities which might hamper a union's exercise of the right to avoid harmful and perhaps unjustified publicity or the disclosure of information which might be confidential (Digest, op. cit., para. 334). Furthermore, it recalls that when an audit is called for, it should normally be undertaken by an auditor who possesses the required professional qualifications and who is independent (see Digest, op. cit., para. 330).
15. 612. Finally, as concerns the establishment of a Constitution Review Committee, the Committee recalls that amendments to the Constitution of a trade union should be debated and adopted by the union members themselves, without government interference (see Digest, op. cit., para. 286).
16. 613. In conclusion, the Committee recalls the importance it attaches to the general principle of non-interference by government authorities in the internal affairs of trade unions and requests the Government to ensure that the preparation of elections and any eventual constitutional review are carried out by the members of the NLC without any government interference. Furthermore, the Committee trusts that the disqualification of any union members from the elections shall be limited to those who have actually been convicted of a criminal offence which, by its nature, is prejudicial to the performance of trade union duties. As concerns the proposed audit of the NLC, the Committee trusts that, if irregularities have indeed appeared in the annual statements or have been reported by members of the NLC, the audit shall be undertaken by an independent and qualified person.