ASUU Strike: the Sense, the Nonsense and the Law(1)

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Between the inception of the industrial dispute popularly known as ASUU strike in July and the present time, lots of issues have been debated, but with little being said about the legal questions elicited by such issues; a neglect or an omission which has rendered the unsuspecting students, parents and general public more confused than informed. Thus, it is pertinent to appraise some of the legal questions: one, whether the 2009 FG/ASUU agreement is ipso facto enforceable and, if yes, whether ASUU ought to have, in the ‘interests’ of the students, sought for the enforcement of the agreement in court in lieu of embarking on the current indefinite strike? Two, whether the strike is not a violation of students’ human rights and, if yes, whether ASUU and FG are severally or jointly liable for the violation? Three, whether in view of the purported shifting of grounds by FG and the intervention of the National Assembly which were once met with the ‘No Retreat No Surrender’ stance by ASUU, the latter can still be said to be ‘patriotic’? Four, whether the ‘No work No Pay’ rule in the Trade Dispute Act is constitutional and legal under international law? Five, whether the alleged prevention of ASUU or other groups from holding rallies or protesting is constitutional and/or legal under international law? Six, whether a university like Unilorin has not, by its non-participation in the strike action, legally disentitled from sharing in the proceeds of the strike?

According to the elementary law of contract, for an agreement to be enforceable the following elements must be present as at the time of making the agreement: offer, acceptance, consideration, consensus ad idem, and intention to enter into legal relations. By virtue of the negotiations leading to the signing of the 2009 agreement, the calling off of the then strike, theemployer- employee relationship between the parties, the foregoing elements were present. The onus to prove otherwise however is, in this instant case, on FG who reneged on the agreement. Meanwhile, with due respect to the office of the Senate President, David Mark, in law, defence of ignorance or purported incompetence (of adults!) can hardly constitute any vitiating elements capable of rendering the 2009 agreement void. Therefore, it is strongly submitted that the agreement, which is also a collective agreement within the meaning of section 48(1) of Trade Dispute Act, is enforceable before the National Industrial Court (NIC) pursuant to section 254(C)(1)(a)&(j) and 254(D)(1) of the Constitution of the Federal Republic of Nigeria, 2011 as amended.

Since the agreement is capable of being enforced, even if prima facie, then why did ASUU opt for strike action instead of court action? The following, among others, might be responsible: where the case gets to the court, ASUU may, by order of the court, be prohibited from embarking on industrial actions pending the final determination of the matter, coupled with the fact that the FG would most likely frustrate the courts’ processes thereby causing the case to drag on for many years and render the eventual judgment, if given in ASUU’s favour, nugatory and therefore pyrrhic.

It is further contended that the strike action amounts to violation of students’ fundamental rights, in particular, violation of the students’ rights to education and/or to dignity of human person. Both are guaranteed under sections 18 and 34 of the 1999 Constitution, supra, and Articles 17 and 5 of the African Charter on Human and People’s Rights (Ratification & Enforcement) Act, 1981. The state and non-state actors have the obligation to respect and protect human rights. To respect a right means not doing anything that is capable of interfering with or preventing the enjoyment of the right in question; to protect a right means to take an action that will lead to or secure the enjoyment of the given right. It is submitted that direct or indirect inducement of an act, just like a strike action, which interferes with or prevents the students from enjoying their right to education, is a violation of such right. While the right to education may not be justiciable under the 1999 Constitution, supra, owing to the provision of section 6(6)(c), it can however be enforced in the same Nigerian Courts under the African Charter, supra, relying on the combined provisions of sections 6(6)(c), 12, 18 and 19(d) of the Constitution and also on the authorities of the Supreme Court in Abacha v. Fawehinmiand of the ECOWAS Court in SERAC v. Nigeria. It is important to know that by virtue of the opening sentence of section 6(6)(c), the non-justiciability clause may be subject to other sections of the constitution just like section 12 in view of the state’s obligation under international law as affirmed by section 19(d) and corroborated by the SC in Abacha v. Fawehinmi.

Being parties to the dispute that is being alleged of violating students’ rights, both parties are prima facie liable for the violation. And where the court eventually finds violation of the rights as alleged, ASUU may plead, among other things, that one, the violation occurred while it was exercising its legal right, guaranteed by the Trade Union (Amendment) Act 2005, the 1999 Constitution and relevant treaties; two, that being the defaulter of the 2009 agreement, a default that for led to the violation, the FG is solely liable. It is submitted that since the FG is the defaulter of the agreement coupled with the fact that, under international law, it is under a strict obligation to promote and respect its citizens’ rights, its chance of escape from liability appears very slim.

Since the time it was reported that the FG has purportedly shifted grounds while ASUU remains ‘recalcitrant’, the latter has been described, in some quarters, as being unpatriotic? Thus, the question that begs for attention is what is patriotism or what does it mean to be patriotic? According to the Concise Oxford English Dictionary, Eleventh Edition, to be patriotic means to be ‘devoted to and vigorously defending one’s country’. Also, according to one of the most referenced and celebrated philosophers in the fields of constitutionalism, governance and liberty, Thomas Paine, to be patriotic is to defend one’s country against the government. It therefore flows from the foregoing that to be patriotic consists properly, not in the act of defending the government or its officials against the country, rather in the act of defending the country, its people, its born and unborn generations, and its most central institution, which findings have affirmed to be education, against a corrupt, parasitic, incompetent and clueless government! Hence, between an entity which is defending a sector of the country that has been empirically adjudged primary and indispensable to the survival of other sectors, and by implication, of the country itself, and an entity which is more interested and readily disposed to squandering the country’s fortunes in the perpetuation of itself rather than of such vital sector, which is patriotic? The answer is unequivocally visible to the blind and audible to the deaf!

Comrade IBIKUNLE ISAAC M.,
400L Student of Law, OAU.
Whatsapp: 07063875335
Twitter: @ibikunleisaacm
Email: ibikunleisaacm@yahoo.com