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GB.274/8/3
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EIGHTH ITEM ON THE AGENDA
315th Report of the Committee on Freedom of Association
Contents
II. Cases examined by the Committee
Cases Nos. 1793 and 1935 (Nigeria): Report in which the Committee requests to be kept informed of developments
Complaints against the Government of Nigeria presented by the International Confederation of Free Trade Unions (ICFTU), the Organization of African Trade Union Unity (OATUU), the World Confederation of Labour (WCL) and the International Federation of Chemical, Energy, Mine and General Workers' Union (ICEM)
The Committee's conclusions
The Committee's recommendations
1. The Committee on Freedom of Association, set up by the Governing Body at its 117th Session (November 1951), met at the International Labour Office, Geneva, on 4, 5 and 17 March 1999 under the chairmanship of Professor Max Rood.
2. The Committee had before it two complaints of violations of freedom of association in Nigeria, presented by a number of trade union organizations (Cases Nos. 1793 and 1935), as well as a report of the Officers of the Governing Body entitled "Observance by Nigeria of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98): Report on the direct contacts mission to Nigeria (17-21 August 1998)"(1) pursuant to its decisions to institute, by its own motion, the procedure provided for in article 26(4) of the ILO Constitution and to proceed to appoint a commission of inquiry (271st Session, March 1998) and to suspend the work of the commission to allow a direct contacts mission to take place in the country (272nd Session, June 1998).
3. In accordance with the decision adopted by the Governing Body at its 273rd Session (November 1998), the Committee submits, for the Governing Body's approval, a report on the pending cases.
II. Cases examined by the Committee
Report in which the Committee requests
to be kept informed of developments
Complaints against the Government of Nigeria
presented by
-- the International Confederation of Free Trade Unions (ICFTU)
-- the Organization of African Trade Union Unity (OATUU)
-- the World Confederation of Labour (WCL) and
-- the International Federation of Chemical, Energy,
Mine and General Workers' Union (ICEM)
Allegations: Arrest and detention of trade union leaders, dissolution of
union executive councils, government interference in union structure
and functioning and restrictions on international affiliation
4. In August 1994, the International Confederation of Free Trade Unions (ICFTU), the Organization of African Trade Union Unity (OATUU) and the World Confederation of Labour (WCL) submitted a complaint of violations of freedom of association against the Government of Nigeria. This complaint (Case No. 1793) has been examined by the Committee on Freedom of Association in the following reports [295th Report, paras. 567-614; 300th Report, paras. 245-271; 304th Report, para. 13; 306th Report, paras. 45-47; 307th Report, paras. 33-35; 308th Report, paras. 53-55; 309th Report, paras. 27-29].
5. In a communication dated 1 August 1997, the ICFTU and the International Federation of Chemical, Energy, Mine and General Workers' Union (ICEM) presented a new complaint of violations of freedom of association against the Government of Nigeria (Case No. 1935). The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF), the International Textile, Garment & Leather Workers' Federation (ITGWLF) and the International Federation of Commercial, Clerical, Professional and Technical Employees (FIET) associated themselves with this complaint in communications dated 29 August, 24 September and 10 October 1997 respectively. In the absence of any reply, the Committee addressed an urgent appeal to the Government to furnish its observations in respect of Case No. 1935 in March 1998 [309th Report, para. 8].
6. In the meantime, at its 271st Session (March 1998), the Governing Body, after taking due note of the Committee's 309th Report, as well as a report of the Officers of the Governing Body concerning the trade union rights situation in Nigeria, occasioned by a letter from the Governing Body Worker Vice-Chairperson to the Director-General, decided to institute the procedure provided for in article 26(4) of the Constitution and to proceed to appoint a commission of inquiry to consider the allegations made against the Government of Nigeria in Cases Nos. 1793 and 1935. At its 272nd Session (June 1998), while appointing the members of the Commission of Inquiry, the Governing Body, referring to recent significant developments in the country, nevertheless decided that the commencement of the work of the Commission should be delayed for 60 days in order to allow the Government to admit a direct contacts mission to Nigeria. The mission took place from 17 to 21 August 1998 and was headed by Justice Rajsoomer Lallah, Chair designate of the appointed Commission of Inquiry, accompanied by Steven Oates from the ILO Standards Department.
7. At its 273rd Session (November 1998), the Governing Body had before it a report of the Officers entitled "Observance by Nigeria of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98): Report of the direct contacts mission to Nigeria (17-21 August 1998)". [See GB.273/15/1.] On the basis of this report, the Governing Body decided:
(a) to take note of the report of the direct contacts mission;
(b) to endorse the concluding remarks and request the Government of Nigeria to take all appropriate action in that light;
(c) in particular, to request the Government of Nigeria to communicate full information on the matters raised in Cases Nos. 1793 and 1935 in due time for examination by the Committee on Freedom of Association at its next meeting (March 1999);
(d) to request the Director-General to transmit the report of the direct contacts mission to the Committee of Experts on the Application of Conventions and Recommendations, for examination at its November-December 1998 session in connection with the application by Nigeria of relevant ratified Conventions;
(e) to suspend the work of the Commission of Inquiry pending such examinations and until such time as the Governing Body may decide otherwise.
8. The Government sent its observations in a communication dated 27 January 1999.
9. Nigeria has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
A. Previous examination of Case No. 1793
10. The last full examination of Case No. 1793 by the Committee took place during its November 1995 meeting [300th Report, paras. 245-271]. At that time, the Committee formulated the following recommendations:
(a) As concerns the arrests of Mr. Kokori, Mr. Addo, Mr. Aidelomon and Mr. Elregha for carrying out legitimate trade union activities, the Committee urges the Government to take the necessary measures to ensure the immediate release of any of these trade union officials who might still be detained and to keep it informed in this regard.
(b) The Committee furthermore urges the Government to refrain in the future from arresting trade unionists who have only been exercising their legitimate trade union activities.
(c) The Committee urges the Government to repeal immediately Decrees Nos. 9 and 10 and to allow independently elected officials to exercise their trade union functions once again, to restore to the executive councils of the NLC, NUPENG and PENGASSAN access to their respective trade union premises and bank accounts and to withdraw the suspension of their check-off facilities at the national level. The Government is requested to keep the Committee informed of the measures taken in this regard.
(d) Given the information provided by the Government, and even if elections were organized at the branch level, the Committee cannot but conclude that interference by government authorities in the internal affairs of the NLC still continues, constituting a serious violation of the most basic principles of freedom of association. It therefore calls upon the Government to withdraw immediately the government-appointed Sole Administrator of these organizations and allow the union members and their elected officials to exercise their trade union functions in full freedom.
11. During its follow-up examination of this case at its meeting in June 1996 [304th Report, para. 13], the Committee noted the release of Mr. Addo, third vice-president of PENGASSAN, Mr. Elregha, branch chairman, PENGASSAN, and Mr. Aidelomon, branch chairman, PENGASSAN. It continued, however, to express its strong condemnation of the continued detention of Mr. Kokori, General Secretary of NUPENG, as well as the lack of progress in respect of its other previous recommendations.
12. In March 1997, in its follow-up examination of the case, the Committee had noted that several new decrees had been issued which appeared to demonstrate an expansive and systematic approach to diminishing trade union rights in Nigeria. In this regard, the Committee referred to the Trade Disputes (Essential Services Deregulation, Proscription and Prohibition from Participation in Trade Union Activities) Decree No. 24 and the Trade Disputes (Essential Services) (Proscription) Order 1996 of 21 August 1996 which proscribed and prohibited the participation in any trade union activities of the Non-Academic Staff Union of Educational and Associated Institutions, the Academic Staff Union of Universities and the Senior Staff Association of Universities, teaching hospital, research institutes and associated institutions and dissolved the National Executive Council and the Branch Executive Councils operating within any university in Nigeria. The Committee also took note of the Trade Unions (Amendment) Decree No. 4 of 5 January 1996 which restructured the 41 previously registered industrial unions into 29 trade unions affiliated to the Central Labour Organization (named in the law), as well as the Trade Unions (Amendment) (No. 2) Decree No. 26 of 16 October 1996 which granted the Minister the power to revoke the registration of any trade union in the interest of overriding public interest and replaced the right of appeal to the appropriate High Court which was previously guaranteed with a right of appeal limited to the Minister [see 306th Report, paras. 45-47].
B. The complainants' allegations in Case No. 1935
13. In their communication dated 1 August 1997, the complainants refer to the continued detention of Mr. Kokori and the arrest in January 1996 and continued detention of Milton Dabibi, the general secretary of PENGASSAN and secretary general of SESCAN, the federation of senior staff associations. They refer to the fact that neither Mr. Kokori nor Mr. Dabibi have been charged or tried, that they have been denied access to their lawyers and their unions, that visits from their families have been severely restricted and that, although they are both in poor health, they have been refused proper medical attention.
14. The complainants further allege that the Government has violated the principles of freedom of association and the provisions of Conventions Nos. 87 and 98 with the adoption of the Trade Unions (Amendment) Decree No. 4 of January 1996, the Trade Unions (Amendment) Decree No. 26 of October 1996 (see above for greater detail concerning the contents of these decrees) and the Trade Unions (International Affiliation) Decree No. 29 of October 1996 which specifies the international trade union organizations with which the Nigerian Labour Congress (NLC) and any other trade union may affiliate. According to the allegations, Decree No. 29 nullifies existing affiliations to unapproved international trade union organizations unless approval has been granted by the Provisional Ruling Council, and bans future affiliations without the express approval of the government-appointed administrator running the affairs of the NLC. This Decree further provides for a fine of 100,000 naira or five years' imprisonment for any contravention, as well as the revocation of the trade union registration certificate.
15. Finally, the complainants state that, ever since the issuance of the Dissolution Decrees Nos. 9 and 10 in 1994, the NLC, NUPENG and PENGASSAN have been run by government-appointed administrators and independent trade union activity in Nigeria has been rendered impossible.
C. The Government's reply
16. In its communication dated 27 January 1999, the Government first refers to the progress made concerning the outstanding points in these cases which have already been reflected in the report of the ILO direct contacts mission which was submitted to the ILO Governing Body in November 1998. As follow-up information to that report, the Government then indicates that two new decrees have been promulgated in order to repeal and/or amend Decrees Nos. 4, 26 and 29 of 1996 in so far as they were found to be in contravention of the principles of freedom of association. The Government transmitted with its reply a copy of these two decrees: Trade Unions (Amendment) Decree No. 1 of 1999 and Trade Unions (International Affiliation) (Amendment) Decree No. 2 of 1999.
17. The Government further indicates that the full democratization of the Nigerian Labour Congress (NLC) was undertaken by the workers themselves on 27 January 1999, in the presence of international observers, including ILO representatives and the Secretary-General of the Organization for African Trade Union Unity (OATUU). Finally, the Government states that details of the newly elected members of the new National Executive Council of the NLC will be communicated in due course.
D. The Committee's conclusions
18. The Committee first welcomes the news that an ILO direct contacts mission was able to take place in Nigeria in August 1998 and expresses its deep appreciation to the mission for their excellent work in this regard. It takes due note of the mission report which was submitted to the Governing Body in November 1998. The Committee welcomes the significant developments which have occurred in the country since it last examined this case, in particular the release of Mr. F. Kokori, and of all remaining detained trade unionists.
Outstanding recommendations in Case No. 1793
19. The Committee notes with interest in respect of its earlier outstanding recommendations in Case No. 1793 that Decrees Nos. 9 and 10 of August 1994 which had dissolved the Executive Councils of the Nigerian Labour Congress (NLC) and of the National Union of Petroleum and Natural Gas Workers (NUPENG) and the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) were repealed on 11 August 1998 (with a commencement date of 20 July 1998) by Repeal Decrees Nos. 13 and 14 respectively. As concerns the Committee's previous recommendations concerning the interference by government authorities in the internal affairs of the NLC through the appointment of a government sole administrator, the Committee welcomes the Government's indication that the workers of the NLC have elected their representatives in a Congress which took place on 27 January 1999. The Committee is also aware that democratic elections have been held for the members of the Executive Councils of NUPENG and PENGASSAN.
20. The Committee further notes with interest that the Trade Disputes (Essential Services Deregulation, Proscription and Prohibition from Participation in Trade Union Activities) Decree No. 24 and the Trade Disputes (Essential Services) (Proscription) Order 1996 of 21 August 1996, which proscribed and prohibited the participation in any trade union activities of a number of academic and non-academic staff unions and associations, were repealed on 11 August 1998 (with a commencement date of 20 July 1998) by Repeal Decree No. 12.
Allegations in Case No. 1935
21. As concerns the complainants' allegations that the Trade Unions (Amendment) Decree No. 4 of 5 January 1996 violated the principles of freedom of association by unilaterally restructuring the previously registered industrial unions, reducing their numbers from 41 to 29, the Committee notes with interest the adoption of the Trade Unions (Amendment) Decree No. 1 of 1999 which deletes all restricting references to "twenty-nine" unions and adds to the list in the Schedule to the Act a reference to "any other workers' trade union registered under this Act". The Committee notes with concern, as has been noted previously by the Committee of Experts on the Application of Conventions and Recommendations, that the Trade Unions Act still maintains a system of trade union monopoly given that, under section 33(2), all registered trade unions are deemed to be affiliated to the Central Labour Organization which is named in the law (section 33(1)). Furthermore, under section 3(2) of the Trade Unions Act, no trade union shall be registered to represent workers or employers in a place where there already exists a trade union. Firstly, the Committee would recall that even in a situation where, historically speaking, the trade union movement has been organized on a unitary basis, the law should not institutionalize this situation by referring, for example, to the single federation by name, even if it is referring to the will of an existing trade union organization. In fact, the right of workers who do not wish to join the federation or the existing trade unions should be protected, and such workers should have the right to form organizations of their own choosing, which is not the case in a situation where the law has imposed the system of the single trade union [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 299]. Furthermore, the existence of an organization in a determined occupation should not constitute an obstacle to the establishment of another organization, if the workers so wish [see Digest, op. cit., para. 276]. The Committee therefore urges the Government to amend its legislation so as to ensure that workers may belong to the union of their own choosing at all levels and requests the Government to keep it informed of the measures taken in this regard.
22. Furthermore, while noting with interest that the Trade Union (Amendment) Decree No. 1 of 1999 modifies some of the amendments made by Decree No. 26 of 1996 by reinserting the possibility for appeal to an appropriate court in cases of denied or cancelled registration and by redefining the term "member of a trade union" more broadly to include persons either elected or appointed by a trade union to represent workers' interests, the Committee notes with regret that the amendment made in 1996 to section 7(9) of the Trade Union Act authorizing the Minister to revoke the certification of any registered trade union due to overriding public interest has been maintained. The Committee must recall in this respect that the dissolution of trade union organizations is a measure which should only occur in extremely serious cases; such dissolutions should only happen following a judicial decision so that the rights of defence are fully guaranteed [see Digest, op. cit., para. 666]. In these circumstances, and while noting that the cancellation of registration may once again be appealed to the appropriate court, the Committee notes with concern that the powers vested in the Minister under section 7(9) are overly broad and urges the Government to take the necessary measures to repeal this section.
23. The Committee further notes with concern that Decree No. 1 of 1999 has also maintained the condition for the payment of check-off payments based on the inclusion of "no-strike" clauses in relevant collective bargaining agreements and has merely inserted an additional requirement for "no lock-out" clauses. Recalling in particular that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests [see Digest, op. cit., para. 475], the Committee can only consider that a legislative provision conditioning check-off payments on the inclusion of no-strike and no lock-out clauses constitutes undue intervention by the authorities in the right of workers' organizations and of employers' organizations to negotiate freely as set out in Article 4 of Convention No. 98. It would further point out that the withdrawal of the check-off facility, 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 [see Digest, op. cit., para. 435]. The Committee would therefore request the Government to take the necessary measures to amend the legislation so as to ensure that the provision of check-off facilities is not conditioned upon the inclusion of such clauses in freely concluded collective agreements and requests the Government to keep it informed in this regard.
24. Finally, the Committee takes due note of the Trade Unions (International Affiliation) (Amendment) Decree No. 2 of 1999 which amends Decree No. 29 of 1996 which had cancelled all previous international affiliations other than to the Organization of African Trade Union Unity (OATUU) and the Organization of Trade Unions for West Africa and conditioned all future affiliations upon prior approval. While noting that section 1(1) has been amended to provide that any trade union may affiliate with any international labour organization or trade secretariat in accordance with the Decree, the Committee notes with regret that section 1(2), as amended, still provides that an application for affiliation under this Decree must be submitted with the details of such affiliation to the Minister for approval. While noting with interest that the penalty of up to five years' imprisonment for contravention of this Decree has now been deleted, the Committee must nevertheless recall that legislation which requires that government permission be obtained for the international affiliation of a trade union is incompatible with the principle of free and voluntary affiliation of trade unions with international organizations [see Digest, op. cit., para. 627]. The Committee therefore urges the Government to take the necessary measures to amend the International Affiliation Decree so as to ensure that workers' organizations may affiliate with the international workers' organization of their own choosing free from interference by the public authorities. It requests the Government to keep it informed of the progress made in this regard.
25. In conclusion, the Committee takes note of the positive steps which have been taken by the Government to ensure fuller conformity between national legislation and practice and the principles of freedom of association. As pointed out above, however, it notes that a certain number of discrepancies in respect of these principles and the provisions of Conventions Nos. 87 and 98 remain in the legislation. The Committee therefore draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
The Committee's recommendations
26. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
(a) Noting that sections 3(2) and 33(1) of the Trade Unions Act maintain a system of trade union monopoly, the Committee urges the Government to amend the Act in order to ensure the right of workers to form and join the union of their own choosing at all levels and requests the Government to keep it informed of the measures taken in this regard.
(b) Noting with concern that the Minister has overly broad powers to cancel trade union registration under section 7(9) of the Trade Unions Act as amended in 1996, the Committee urges the Government to take the necessary measures to repeal this section.
(c) Considering that the legislative requirement to include "no-strike" and "no lock-out" clauses in collective agreements in order to benefit from check-off facilities is a violation of the principle of free collective bargaining, the Committee requests the Government to take the necessary measures to amend the legislation so as to eliminate any governmental interference in this respect and to keep it informed in this regard.
(d) The Committee urges the Government to take the necessary measures to amend the International Affiliation Decree so as to ensure that workers' organizations may affiliate with the international workers' organization of their own choosing free from interference by the public authorities and requests the Government to keep it informed of the progress made in this regard.
(e) The Committee draws the legislative aspects of these cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
Geneva, 17 March 1999.
(Signed) Max Rood, Chairman.
Point for decision: Paragraph 26.
1. See GB.273/15/1.