True Federalism and Labour Issues

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Salihu Moh. Lukman
Progressive Governors Forum
Abuja

Background

After its March 2, 2021 National Executive Council (NEC) meeting, Nigeria Labour Congress (NLC) announced that ‘should the need arise, it has empowered the National Administrative Council (NAC) to declare and enforce a national strike action especially if the legislators continue on ruinous path of moving the National Minimum wage from the Exclusive to the Concurrent Legislative List.’ In addition, the Communique of the meeting signed by the NLC President, Comrade Ayuba Wabba and Acting General Secretary, Comrade Bello Ismail also ‘condemned and rejected in its entirety the ploy to decentralise Nigeria’s judiciary through the establishment of State Judicial Councils describing the move as unpatriotic, self-serving and an attempt to throw Nigeria into judicial and social chaos.’

It is important that as a nation we are able to engage these issues with the democratic understanding that these are negotiable items based on recognising that every interested Nigerian has the inalienable right to express and canvass for positions as provided under the 1999 Constitution as amended. It is however worrisome that both the language and content of the NLC Communique falls far below the standard of NLC and smacks of undemocratic posture of intolerance and imposition. This is partly because, there is hardly any attempt to provide any justification of why minimum wage should be retained in the Exclusive List or the disadvantages of establishing State Judicial Council beyond some claims to entitlements and condemning people promoting these changes. The threat to go on strike is needless and to allege ‘attempt to throw Nigeria into judicial and social chaos’ is simply cheap blackmail. Besides, while Nigeria may not be said to be in any judicial chaos today, are we not already in some form of social chaos in the country?

Minimum Wage Challenges

No one can dispute that as a nation, we are faced with the challenge of developing a framework for minimum wage review, which should be indexed with workers productivity as well as cost of living realities. The mere fact that often it takes upward of five years for minimum wages to be reviewed in the country is both an anomaly and a reflection of our stagnant labour relations reality which also is a reflection of the weakness of the labour movement. If workers have been able to contribute their role in the nation’s revenue, why should it be difficult to ensure annual or even quarterly review of minimum wage? Part of the distortion so far is that the question of workers’ productivity is hardly a reference point in matters of wage determination especially in the public sector.

It may be convenient for the leadership of labour, including the NLC, to retain current framework of determining minimum wage based on the capacity of federal government. Unfortunately, our union leaders have weakened themselves so much that their negotiating power is hardly oriented based on knowledgeable disposition about workers input in the production process at all levels in the country. The only weapon they seem to use so often to win concessions and agreements is strike. Blackmails and muscle flexing has become an important integral strategy to discredit perceived opponents. Name calling and campaigns by the NLC leadership aimed at blocking any consideration of proposals to change our harsh realities as a nation are now very common.

Today, we have a minimum wage of N30,000, which unions have been unable to achieve implementation in many states and many private sector establishments. In fact, even at the time of negotiating the minimum wage of N30,000, there were problems of getting the old minimum wage of N18,000 in many states and private establishments implemented. Some of the states that were able to implement the minimum wage are barely surviving. Rather than objectively reviewing our challenges, our labour leaders imagined that name calling and threatening political leaders with strikes is the way to go. This is most unfortunate. NLC leadership may want to share the full picture of status of Implementation of the N30,000 minimum wage, both in the public and private sectors, with Nigerians.

Elementary analysis would caution about the consequence of continuing with a centralised framework for minimum wage legislation based on using the financial capacity of Federal Government to fix national minimum wage that is hardly informed by economic indices of work output across the country and reflecting all sectors of the economy. Such a framework can only result in either shortchanging workers in high-revenue states/areas or over-stretching employers in low-revenue states/areas. Certainly, a review of wage fixing theories would highlight these challenges and perhaps dangers.

It needs to be stated emphatically and unequivocally that although there is increased revenue in the country, which has resulted in improved financial profile of especially states and federal governments in the country, it has not favourably altered the structure of government finances. Some of the underlying factors would include factors of corruption, which the APC government of President Muhammadu Buhari is committed to fighting and has been taking initiatives. While we may debate about the level of success, it should be a welcome development to have input from our leaders of non-governmental organisations such as the NLC in terms of what needs to be done at all levels in order to strengthen our fight against corruption and therefore increase the financial capability of all governments especially at state levels to be able to accommodate increased wages for workers. In all these, beyond the lamentation against political leaders in the country on the issue of corruption, what are the specific demands of NLC on fighting corruption in the country given that it is a problem that have ravaged all sectors and all levels of society, including the labour movement.

Besides, given characteristically unstable international oil market, current levels of oil revenue are on decline. It is to the credit of the Federal Government that non-oil revenue is increasing and in the case of many states, capacity to mobilise internally generated revenue has increased. What all these suggest is that the nation should be able to assess these emerging realities and accordingly reconfigure wage determination process in recognition of revenue realities of the constituent units of our federal system and as well as ensuring that our national capacity to affirm the ability of private sector employers to operate and therefore create more employment are not undermined. Therefore, to use the capacity of Federal Government as determining variables for minimum wage fixing would be almost suicidal.

Be that as it may, there are certainly challenges that need to be addressed. The challenges border on ensuring availability of enough financial resources to guarantee higher levels of wages in the country, in the context of which issues of minimum wage can be correctly computed taking both production and cost of living indices into account. NLC should approach this based on a strategy of strengthening its own organisational capacity to negotiate improved conditions in the country and not look for easy approaches of centralised minimum wage fixing that are not sustainable, which include retention of a faulty constitutional provision such as the provision of item 34, Part 1 of Second Schedule of the 1999 Constitution, as amended.

As it stands, item 34 of Part 1 of the Second Schedule is not is not sustainable and could only expose Nigerian workers to greater risks and danger. Being conversant with internal logic influencing leadership thinking in the Nigerian trade movement, it is quite worrisome that NLC is approaching these matters less objectively. It has never been the case that workers will get justice on matters of employer/employee relations bordering on pay and entitlements with simple reference to the law. Had that been the case, there would be no need for unions. The business of unions will always be to develop strategies and carry out actions that can result in improved working conditions and better pay. These are issues bordering on workers input to the process of revenue generation.

The big worry is when matters of pay and benefits are delinked from these factors, which appears to be the logic of the NLC argument with respect to national minimum wage legislation in Nigeria. Of course, it could be argued that this has been the case, perhaps since the 1970s. That it has been the case does not make it right. What has been the tradition of NLC and Nigerian trade unions is the courage to campaign for what is right especially in relation to workers benefits and welfare. It is a matter that requires good measure of intellectual and political capacity. The position of NLC with respect of minimum wage fixing in Nigeria is weak intellectually and politically unfounded.

Informed by the need to respond to our national challenges bordering operating a centralised minimum wage fixing framework that the APC Committee on True Federalism argued that ‘each state should be free to decide on its level of remuneration based on its resources and productivity. In fact, the committee is of the view that all labour relational issues should be federalised, and each state is free to determine its own labour laws.’ With all our challenges, which is reflected in the failure to enforce minimum wage legislation in many sections of the country, ideally, the leadership of the Nigerian Labour Movement should be effectively preparing itself to develop new strategies of ensuring the emergence of a new framework to strengthen mechanism for justice in the workplace, covering issues of wages, benefits and other entitlements. They should be able to ensure that negotiations for states labour laws are properly guided by relevant international standards, including International Labour Organisation (ILO) Conventions.

A major difficulty is that the Nigerian Labour Movement represented by NLC and TUC are operating a centralised model of organisation whereby every issue regarding labour relations is concentrated at national level. This has inadvertently weakened the capacity of state councils of both NLC and TUC to successfully negotiate issues affecting workers at state levels. This is also why there is so much difficulty in getting state leaders of NLC to achieve implementation of minimum wage even when it has become law.

It is important we recognise that our current challenges as a nation require a complete overhaul of existing frameworks. Whether in relation to minimum wage or all the other issues affecting all sectors of our national economy, we are faced with a reality that question all the existing frameworks. Any suggestion to hang on to all the frameworks that have become source of our national pain and crisis in the country can only create more problems. In many respects, it can be argued that the question of negotiating new proposals aimed at addressing these challenges is a democratic obligation. If at all our democracy can prove its relevance and capacity to move our country forward, it is dependent on how much openness and tolerant Nigerians, including all our interest groups, can be.

Against all these, one wonder, what is the position of NLC regarding all the debate on True Federalism? Proposals of moving minimum wage to Concurrent List is only an integral part of the debate. NLC pride itself, being part of organised labour, as ‘about the only truly pan Nigerian organisation with diverse membership that cuts across tribal, ethnic and religious affiliations which has continued to speak and champion for the rights of Nigerians regardless of creed and breed.’ With all these claims why is the NLC unable to speak or intervene on the issue of blockade of supply of food items from the North to the South by Amalgamated Union of Foodstuff and Cattle Dealers of Nigeria (AUFCDN)? With AUFCDN being an affiliate of NLC, which at the time of the NLC NEC meeting (March 2) was going through very difficult times and Nigerians also going through difficult times as well, is it that the issue of blockade of food supply to the South is not an important matter requiring the attention of the NLC and perhaps a resolution in the Communique of its March 2nd NEC meeting? It is not only on the issue of minimum wage that NLC should demonstrate its nationalist credentials. Nigerians want to see a pan Nigerian NLC actively providing a united rallying point for the resolutions all our divisive challenges.

Establishment of State Judicial Council

So far, the recommendation for the establishment of State Judicial Council as contained in the report of the APC Committee on True Federalism is informed by the need to correct the anomaly of a federation that has a more or less unitary judiciary. If we are to operate a truly federal system, why should we have a critical sector such as our judiciary being over centralised? Mallam Nasir El-Rufai who was the Chairman of the APC Committee on True Federalism made this point very clear during the 50th Anniversary Lecture of Arewa House on October 31, 2020 when he stated that ‘State Judicial Councils should be established, while the National Judicial Council’s should be limited to the federal and appellate courts.’

Specifically, the APC True Federalism Committee recommendation is that states should have State Judicial Council, which should take over ‘the functions of the National Judicial Council (NJC) in relation to state courts. This will be more in tune with our federal system. At the same time, it will preserve the independence of the judiciary in the states through the State Judicial Council similar to the function of the National Judicial Council (NJC) in relation to federal courts.’

The APC Committee specifically argued that ‘After very careful deliberation, the committee notes that of the three arms of government, the judiciary is the most centralised. The committee therefore recommends that each state should have and control its own judiciary including appointment, promotion, discipline, transfer and remuneration of Judges. The function of the National Judicial Council, NJC, should be limited to federal courts only while the constitution should be amended to establish states judicial committees to be responsible for state courts. Their powers in relation to the state courts shall be analogous to the powers of NJC in relation to federal courts. This of course will be without prejudice to inter-service transfer in which case such transferees will come under the relevant judicial service. Section 6(5)(K) should be amended to make it clear that states can establish courts to exercise jurisdiction at first instance or on appeal on matters with respect to which the states can make laws.’

What is the position of NLC regarding reforming the nation’s judiciary? The standard of NLC is that it always has a comprehensive position. If it is going to object to any proposal, it will always be within the context of advancing its own position. It is difficult to situate NLC’s objection to the establishment of State Judicial Council based on a clear proposal of how we should proceed as a nation with the task of reforming our judiciary. Or is the NLC suggesting that reforming our judiciary is not needed? It is therefore very disappointing that the voice of NLC is missing in all the debate on True Federalism or Restructuring. Perhaps on account of its absence in all these debates, all manner of divisive campaigns is going on in the country.

APC’s Response to our National Challenges

No one should deny the fact that Nigeria is going through existential challenges. What is required in the circumstance is for all patriotic citizens, organisations and leaders to step forward with proposals on how to respond to these challenges. As a party, APC Manifesto is very clear regarding its commitments to the critical challenges facing the country. Although it can be argued that it has its internal challenges, it is important to restate that unlike in the past, APC leaders and governments controlled by the party never respond to these challenges based on the strategy of imposing its positions on Nigerians. If anything, internally, there is a consultative process. It is on account of that, given the national challenge of resolving issues around the campaign for true federalism or restructuring and in line with commitments as provided in its manifesto, the APC in 2017 setup the Mallam Nasir El-Rufai-led Committee on True Federalism.

The Committee reviewed the reports of the 2005 National Political Reform Conference and the 2014 National Conference based on which it identified thirteen (13) issues requiring some responses. The thirteen issues are – Creation of States, merger of States, Derivation Principle, Devolution of Powers, Federating Units, Fiscal Federalism & Revenue Allocation, Form of Government, Independent Candidacy, Land Tenure System, Local Government Autonomy, Power Sharing & Rotation, Resource Control and Type of Legislature.

Memoranda from Nigerians were invited and public hearings in all the six geopolitical zones of the country held. Dedicated public hearings for labour, women, youth, civil society and physically challenged groups were held. Unfortunately, both NLC and TUC did not honour invitations to the dedicated public hearings. But in many of the Zonal public hearings State Councils of NLC and TUC participated. Based on all the submissions from the public hearings, the Committee adopted the following recommendations:

  1. Creation of state – creation of state is not expedient given the bureaucracy and attendant cost but recommended the need to attend to the isolated case of South East zone where there is the demand to balance states to be equal to other zones.
  2. Merger of states – recommended constitutional provision for legal and administrative frameworks for states that may consider merger provided it does not threaten the authority or existence of the federation.
  3. Derivation principle – recommended amendment to section 162 (2) of the constitution to allow for upward review of the current derivation formula and its adoption in respect of solid minerals and hydro power.
  4. Fiscal federalism and revenue allocation – recommended amendment of Allocation of revenue Act 2002 to ensure upward review of current revenue sharing formula to states.
  5. Devolution of powers – recommended the transfer of some items on the exclusive legislative lists to concurrent and residual, which include foods, drugs, poison, narcotics and psychotropic substances, fingerprints and identification of criminal records, registration of business names, labour, mines and minerals including oil field, oil mining, geological surveys and natural gas, police, prisons, public holidays, railways and stamp duties be transferred to concurrent list.
  6. Federating units – recommended retention of current political arrangements with states as federating units. In order to continue to manage constant agitation to make geo-political zones federating units, recommended that group of states can cooperate on regional basis in line with section 5 (3) of the constitution.
  7. Form of government – recommended continuation of the presidential system but concerns about corruption and high cost of governance should be addressed with all seriousness.
  8. Independent candidates – recommended that anybody who wishes to contest as independent candidate can do so provided that such a person shall not be a registered member of a political party at least six (6) months before the date set for the elections, his/her nominators must not be members of registered political party, he/she pays a deposit to INEC in the same range as the non-refundable deposit fee payable to candidates sponsored by political parties to their parties, which should be determined by Act of the National Assembly and the candidate must meet other qualification requirements provided by the constitution.
  9. Land tenure system – recommended that the land use act be retained in the constitution in the greater interest of national security and the protection of Nigeria’s arable land from international land grabbers.
  10. Local government autonomy – recommended that LGA should be removed from the constitution and states be allowed to develop local administrative system that is relevant and peculiar to respective states.
  11. Power sharing and rotation – recommended that the complexity of power sharing and rotation be managed at party level rather than in the constitution.
  12. Resource control – recommended amendment of Petroleum Act, LFN 2004, Nigerian Minerals and Mining Act, 2007, Land Use Act, 1978 and Petroleum Profit Tax Act, 2007 so that states can exercise control over natural resources within their respective territories and pay taxes or royalties therefrom to federal government.
  13. Type of legislature – recommended retention of current system but with downward review of running cost.
  14. Other issues

Beyond the 13 issues, the Committee made additional recommendations on 11 issues, which are considered necessary to strengthen Nigeria’s democracy and make it functionally appealing to wider sections of Nigerians. The two issues of minimum wage and establishment of State Judicial Council are part of the 11 recommendations, all of which came from the submissions received from Nigerians from all the public hearings across the six geo-political zones. The 11 additional recommendations are:

A. Demand for affirmation of vulnerable groups – recommended that vulnerable groups (women, youths and physically challenged persons be given adequate attention in terms of appointment in government jobs and political positions, including creating dedicated advisory role at all levels.

B. Citizenship – recommended a comprehensive review of all constitutional provisions on indigeneship and residency status to eliminate all the pervading primordial sentiments on citizenship and indegineship so that ethnic affiliation begin to give way to birth and residency.

C. Ministerial appointment – recommended amendment to section 147 (3) of the constitution to remove requirement on the President to appoint Ministers from every state who must be indigene of the states.

D. State constitution – recommended that state constitution is not a priority.

E. Role of traditional rulers – recommended that each state explore ways of incorporating traditional institutions into their governance models based on which respective House of Assembly enact appropriate laws.

F. Community participation – support all efforts to promote increased community participation in governance within the framework of two-tier federation.

G. Minimum wage legislation – recommended that each state should be free to decide its remuneration based on its resources and productivity

H. Elections – recommended that every tier of government should have autonomy in conducting its own elections

I. Governance – recommended review of scope of immunity granted to Governors and Deputy Governors

J. Judiciary – recommended the creation of State Judicial Council to exercise the function of National Judicial Council in relation to state courts.

K. State alignment and boundary adjustment – recommended that section 8 (2) and (4) of the constitution be amended in order to subject any request for boundary adjustment to a referendum as the case with creation of states and local governments under section 8 (1) and (3) of the constitution.

The full report of the Committee was submitted to the APC National Working Committee on January 25, 2018 organised in four volumes are:

• Volume 1: Main Report. – http://pgfnigeria.org/2018/01/29/volume-1-report-of-the-apc-committee-on-true-federalism/

• Volume 2: Legislative, Executive and Other Action Plans http://pgfnigeria.org/2018/01/29/volume-2-report-of-the-apc-committee-on-true-federalism-action-plan/

• Volume 3: Project Communications Report & Online Survey – http://pgfnigeria.org/wp-content/uploads/2021/01/Volume-3-Project-Communication-and-Online-Survey.pdf

• Volume 4: Summary of Memoranda and Analysis of Data – http://pgfnigeria.org/wp-content/uploads/2021/01/Appendix.pdf

Volume 2 of the report contained proposed legislative bills for either constitutional amendments or changes in all the relevant laws based on the recommendations contained in the report of the APC Committee on True Federalism.

In all of these, the APC is not approaching these issues with the classic arrogance of a governing party. If anything, it can be argued that the matter is still being debated internally within the party. It can also be argued that APC’s approach is to allow for engagement such that in the end, both with reference to minimum wage, establishment of State Judicial Council and all the other recommendations, the democratic process of negotiating these issues should determine the eventual agreement that should emerge.

No decision is made on all these issues. As far as the APC is concerned, it is Nigerians that should decide based on the provisions of the 1999 Constitution as amended. This should mean that the National Assembly will have the leading role and representatives of Nigerians in the National Assembly will drive the process. No doubt members of the National Assembly truly reflect our diversity as a nation. Some members of the National Assembly are as passionate as most Nigerians in terms of fast tracking the process of resolving our challenges. Across all our parties, there are representatives who are taking initiatives to facilitate the process of resolving our challenges.

Certainly, Hon. Mohammed Garba Datti, member of the House of Representatives, representing Sabon Gari Federal Constituency of Kaduna State, is one person that has demonstrated abiding commitment to ensure that we are able to move our nation forward by sponsoring a bill to move minimum wage to the Concurrent Legislative List in the 1999 Constitution in line with recommendations of the report of the APC Committee on True Federalism. Being a member of APC and also one of the representatives of 10th House of Representatives in the National Executive Committee of the APC, it is within his competence to initiate a legislative process on any of the recommendations in the APC True Federalism Committee report. Any Nigerian who disagreed with him should take advantage of the legislative process to ensure that the bill is not passed. Part of the democratic logic is that all interest groups including the NLC can activate the process of lobby and advocacy to mobilise members of the National Assembly to adopt their positions.

Negotiation Versus Imposition

Ultimately, the question is, are we going to negotiate these issues and emerge with agreements that reflect the choices of Nigerians? Or are we going to just dance around the issues and scheme for overpowering contending interests? If negotiation is our choice, why should disagreement become reason for condemnation? Are we negotiating to contract agreements based on capacity to win support? Or is it that we can only win the support of fellow Nigerians if we threaten perceived opponents?

Be that as it may, as democrats, we have no option but to negotiate. As far as is known, the NLC is a democratic organisation and the capacity of its leadership to negotiate is never in doubt. However, to move into the over drive mode and threaten representatives in the National Assembly with strike because individual members such as Hon. Garba Datti Mohammed, have sponsored a bill in the House of Representative on the need to move minimum wage to Concurrent List is simply unacceptable. Why should NLC reduced itself and Nigerian workers into disparaging law makers and calling them ‘hireling in the plot by … sponsors to disorient, injure, and exterminate Nigerian working class’?

This is not the NLC that is pro-active and progressive. It smacks of intolerance and project an organisation that is only interested in imposing its position. As far as NLC and its leadership are concerned, it is either you agree with them or you are against the working class. Once you disagree with them, you are declared a sell-out or anti-working class. No evidence, factual or imagined, is required. This is certainly not the NLC that used to be a true reflection of the progressive aspirations of Nigerians and to that extent therefore open to engagement based on which it is able to unconventionally provide leadership in a way that accommodate the diversity of our nation and society.

Is the proposed bill seeking to move minimum wage to the Concurrent Legislative List in the Nigerian Constitution not going to be subjected to public hearing? Why is the NLC not preparing to engage the public hearing? May be the best form of engagement is to prevent any public hearing from taking place with the threat of a strike. But with or without the public hearing, why is the NLC not able to deploy the strike weapon to compel resolution of all our democratic problems, including achievement of true federalism, however it chooses to define it?

Conclusion

Somehow, it is difficult not to conclude that NLC and its leadership have a misplaced priority. As a union federation, its primary responsibility should be to ensure that Nigerian workers are able to have all it takes to guarantee maximum production. Wages are supposed to be the share paid to workers for their role in production. As things are in Nigeria, at all levels, production is low and in many cases wages, especially in the public sector, are hardly a function of workers’ productivity. Part of the difficulty, which our democracy must address is the question of developing the labour market. With more than 200 million population, could NLC be contented with its current low membership of far less than 20,000?

Beyond creating jobs, the quality of those jobs is important. The whole notion of decent jobs is compromised so long as workers don’t earn living wages. Living wages will be a far cry if the current low productivity indices are retained. The implication of what NLC is campaigning for is that current unacceptably high levels of unemployment and low wages should be retained. If the truth is to be told, minimum wage of N30,000 in the present-day Nigeria for any family is an apology. In terms of potential, if our workers are optimally productive, minimum wage should not be anywhere less than N100,000. What is the proposal of organised labour, including NLC regarding how to increase employment, have decent wage that is indexed with both workers productivity and cost of living realities? Is it even an issue for concern for our labour leaders that workers productivity in the country is low?

We need to take responsibility where it matters most. Nigeria is faced with a lot of problems and the earlier we come to terms with the reality that the only way we can solve our problems is to think out of the box, the better. Resolving these issues require a holistic approach, which should be about reviewing all our existing frameworks. If we want to be a federalist nation, centralised frameworks will completely undermine the capacity of our institutions to meet our national needs. Thinking out of the box require that we first accept that part of why we have most of our problems, including low wages, in the country is because of existing distortions in our federal system. We need to develop our democracy and we need to ensure that as a nation we operate a truly federal system.

This position does not represent the view of any APC Governor or the Progressive Governors Forum

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