Understanding the JUSUN Strike on the Face of Fiscal Federalism

By Ibrahim Ahmad Kala, LL.M.

To begin with, Judiciary is basically the court system of a country – the institution whereby justice is dispensed or administered. It is normally one of the arms of government established along side with the Executive and the Legislature. The whole gamut of personnel consisting of Justices, Judges, and members staff which are responsible for the administration of justice in a state may be seen as representing the court or judiciary. Their existence is very important in the political and administrative system of any nation, and is often regarded as the ultimate hope and protector of the rights of every man. It has diverse functions which includes interpreting the law and the constitution, settling disputes, punishing offenders, protection of rights of citizens, and more Importantly, judicial review of government actions (in this case both the executive and legislative actions, and the federating units).

A popular second republic Governor, Late Lateef Jakande once asserted that “The Legislature may err; the executive may take the wrong decisions and implement it; but those errors, those wrong decisions can be corrected always by reference to the court of law”.

However, such court personnel responsible for coordinating and running day to day activities in the justice sector have felt the need for collective approach on labour issues which they found to be more rewarding than a single-man crusade. Hence, the need for the workers or personnel to come under a professional union to seek for their own betterment. Thus, Judiciary Staff Union of Nigeria (JUSUN) was formed as one of the trade unions out of the lot in Nigeria.

As an affiliate of the Nigerian Labour Congress (NLC), JUSUN has participated in the labour movement in Nigeria since the amalgamation of the Trade Unions in the 70s when the Federal government by its powers conferred on it by the Trade Unions (Central Organisation) Special Provisions Decree of 1976, appointed an administrator of Trade Unions affairs, assisted by 4 other experts with a charge to:

1. Take a step for the formation of a single central labour organisation to which shall be affiliated all trade unions in Nigeria; and
2.Take all steps necessary and encourage the formation whether by amalgamation of Federation of existing trade unions.

At the end of the exercise, the administrators came out with 42 unions of workers (JUSUN inclusive), streamlined along industrial lines, and 28 associations of employers. At the apex of the pyramid is the new central labour organisation – the Nigerian Labour Congress (NlC) inaugurated on 28th February, 1978.

Since there has been no constitutional means by which the judiciary could implement or execute the law either already unambiguously in existence or interpreted by the courts especially as it relate to its institutions of courts, JUSUN became the only alternative that compel compliance by the mighty executives. And since then, JUSUN has been part and parcel of the Labour movement in Nigeria, and in particular, in the forefront of the battle for welfare of workers and financial independence of the nation’s judiciary. Typical of such struggles in the past led to the implementation of Consolidated Judiciary Salary Structure (CONJUSS) and recent legal actions taken by the union which led to January 14, 2014 judgment of the Federal High Court Abuja Coram judice, Ademola j., as he then was, abolishing the piece-meal funding of the state and federal courts by the executive arm of the government. The court held that funds meant for the judiciary should instead be disbursed directly to the heads of court and not to the executive arm of government.

The federal legislature and judiciary have now, to a large extent, been enjoying financial autonomy status as they receive their appropriated funds in bulk unlike their counterparts at the state levels who always get what the governors feels like releasing to them.

This time again, the national leadership of JUSUN in a circular dated April 1, ordered the shut down of various courts across the country as from Tuesday, April 6. JUSUN had declared an indefinite nationwide strike to press home their demand for the financial autonomy of the judiciary.

In the circular signed by JUSUN’s General Secretary, I. M. Adetola, it directed all states and zonal heads of the union to comply with the strike. The union stated that it had at its last National Executive Meeting on March 13, 2021 in Abuja, issued a 21-day ultimatum to the government to implement the financial autonomy of the judiciary with a threat that “failure of which JUSUN will have no other option but to resume the suspended national strike action.”

Let me declare here that these courts as embodiment of Nigerian judiciary have not had the best in freedom terms especially at states level – being subject many a times to the whims and caprices of the other arms of government i.e the ‘mighty’ executive which has a lot of responsibilities that cover the whole spectrum of nationhood/statehood. This is especially so in the control of funds and expenditure of the States judiciary where judicial appointees invariably find it difficult to discharge their obligations without fear or favour, as the dictum, “he who pays the piper dictates the tune” has often proved to be true especially with the executive – judiciary relationship. The executive arm of government are not superior over the judiciary neither is the legislature.They are of equal status governmental wise, and as such they should be allowed to operate independently.

However, many countries including Nigeria, believing in the need for an independent judiciary, have had to take certain measures to preserve same. Undoubtedly, one of the guarantees for the independence of the judiciary comes from the wages/salaries of the judges which are not paid from the same source as other public servants. Judges salaries are paid from the consolidated fund. Such arrangement provides security of service and serves as a buffer against unnecessary intimidation and victimization of judges.

President Muhammadu Buhari on 22/5/2020, signed an Executive Order No.10 for the Implementation of the Financial Autonomy of State legislatures and state judiciaries based on powers conferred on him by section 5 of the Constitution 1999 (as amended). The signing of the Executive Order by the President is expected to strengthen governmental institutions at state level thereby balancing the principle of separation of powers especially between the Executive and Judiciary. The executive order No.10 is coming at the heels of State Executive Governors muzzling the appropriation of the budget of the State Judiciary and undermining its performance.

However, these courts in Nigeria were established for the federation and as such, the remuneration, salaries and allowances of all judicial officers and staff of the courts have been placed at the doorstep of the Federal Government by the constitution.
The National Judicial Council (NJC) shall be responsible to collate all capital and recurrent expenditures of these courts from their various heads, make a consolidated budget and present it to the Budget Office.

Section 84(7) of the Constitution provides that the recurrent expenditure of judicial offices in the Federation (in addition to salaries and allowances of the judicial officers mentioned in subsection (4) of this section) shall be a charge upon the Consolidated Revenue Fund of the Federation.

According to one of the learned constitutional lawyer, Sebastine Hon, SAN the phrase ‘recurrent expenditure’ here carries its ordinary, grammatical meaning – ‘that which happens again and again.’ This then means that all year-in, year-out expenditure of these courts are a direct responsibility of the Federal Government! There cannot be any other reasonable interpretation of this subsection, which has decidedly used the words ‘of judicial offices’ (not ‘officers’).

While the substantial blame goes to the members of the Executive in the administration of the States within the spirit of vertical and horizontal separation of power in the presidential federalism which we practice (i.e the independent of Federal, State and Local governments, and the Executive, Legislature and Judiciary), the legislatures are to a certain extent, also to be blamed.

Recently, the House of Representatives has passed for second reading, the Constitution Alteration Bill seeking to transfer the subject matter of minimum wage prescription from the Exclusive Legislative List to the Concurrent Legislative List set out under the Second Schedule of the 1999 Constitution (as amended).

Leading the debate on the Bill at the plenary session of Tuesday, 22 February 2021, Hon. Garba Datti Muhammad ( APC: Kaduna) mentioned that the Bill aims to amend both the Exclusive Legislative List by deleting the words “ prescribing a national minimum wage for the Federation or any part thereof” under Item 34 of Part 1 of the Second Schedule of the 1999 Constitution (as amended) and inserting a new paragraph 21 and 22 into the Concurrent Legislative List such that the legislative power over the prescription of a minimum wage becomes a concurrent power shared between the National Assembly and the State Houses of Assembly.

The bill elicited a tornadoe of backlash effects and criticism from accros the Labour leaders and concern Nigerians. In a letter signed by the President, Nigeria Labour Congress (NLC), Comrade Ayuba Wabba and President, Trade Union Congress (TUC), Comrade Quadri Olaleye, the labour unions said the entire workforce in Nigeria was angry over the private member bill moved by Hon. Garba Datti Mohammed representing Sabora Gari Federal Constituency of Kaduna State. Hon. Mohammed had sponsored the bill seeking to transfer the national minimum wage from the exclusive legislative list to the concurrent legislative list.

Organised Labour considers this anti-workers bill as an attempt by a few self-seeking and narrow-minded politicians to return Nigeria to the era of slave wages, servile work conditions and severe industrial crisis.

The unions maintained that the National Minimum Wage is the national benchmark minimum below which no employer of labour can pay a worker. They added that it is a global standard that was adopted by the International Labour Organization (ILO) as Minimum Wage Fixing Machinery Convention 026 of 1928 and reinforced by Minimum Wage Fixing Convention 131 of 1970.

It was also captured in Article III subsection (d) of the ILO Philadelphia Declaration which demands all the nations of the world to pursue policies in regard to wages, earnings, hours and other conditions of work calculated to ensure a just share of fruits of progress to all, and a minimum living wage to all employed and in need of such protection.

While, one cannot agree more on the point made out by the labour union, it baffles one to interrogate the sense, with due respect, with which this idea was mooted at the National Assembly in the first place. Here, we are talking about a national law (i.e the Minimum Wage) being exclusively reserved for the federal government to always set the pace as expected in determining a national minimum wages which will serve as a benchmark for other components units i.e. States and Local governments and of course the larger organised private sectors.

Apart from being wrongly and illegitimately initiated, this national question through a private-member bill and not executive – bill, the move if succeeded, may still be dead on arrival on the basis of constitutional “doctrine of covering the field”. The doctrine simply means that where there is a conflict between the legislation of a state and the federal parliament on a matter in the concurrent legislative list, an inconsistency arises (i.e the Minimum wages set by the Federal government, and the ones set by various states governments), and as between the two laws so passed, the one passed by the federal parliament prevails and that of the state is rendered inoperative during the lifetime of the federal law. Hence, what is the need for since the “the field has already been covered”!

It is now abundantly clear that the current nation-wide JUSUN strike is NOT against the Federal executive government, but against the state Executive Governors for their failure to comply with the executive order No.10 on the independence of the judiciary, and against some members of the National Assembly in their blatant quest to devolve the labour matter under the concurrent list.

I therefore, support the struggle embarked upon by JUSUN against the attitude of states governments in this country for the independence of the judiciary, and by JUSUN throwing its weight against the attempt to remove the National Minimum Wages from the exclusive determination and preserve of the federal government. It is very sad that neither the Governors Forum, nor a state Governor has responded to the legitimate demands of the labour leaders – an evidence indicating thier complicity in the imbroglio. Conversely, I commend the Federal Government in setting the pace as expected. It should be noted that minimum wages is not restricted to government workers only who constitute merely 30% of the workforce, but also cover the larger organised private sector who constitute about 70% of the workforce in the country. If there is better understanding of a true federalism, it should have been the guarantee of the independence of the judiciary and ensuring that both the tiers and arms of government operate within the sphere of their own constitutional powers and mandates.

Kala Esq., of the Court of Appeal, wrote this piece from Calabar.©


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