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Published online by Cambridge University Press: 04 March 2010
Between 1999 and 2007, a popular Labour-led movement led a pro-poor struggle to resist the fuel price hike policy of the Nigerian government. Waged in the context of the poverty in which nearly 70 per cent of Nigerians lived, the operation of powerful incentives to raise fuel prices, and Labour's extraordinary socio-political leverage, these struggles triggered much government frustration. One of the strategies adopted by the government to legitimize its attempt to repress the movement was to resort to the courts. This article analyses, from a socio-legal perspective, the key cases relating to the validity of the government's attempts to repress the struggles. The article concludes that, although both pro- and anti-movement trends can be observed in the jurisprudence, the anti-movement tendency having so far prevailed in terms of formal legal precedent, the pro-movement (ie pro-poor) decisions have, as a result of their massive popular legitimacy, actually functioned as the “living law.”
1 Aka, PC “Nigeria since May 1999: Understanding the paradox of civil rule and human rights violations under President Olusegun Obasanjo” (2003) San Diego International Law Journal 209 at 221Google Scholar.
2 It should be noted, however, that the distinction made in this article between “elite” and “poor” Nigerians and between their respective “interests” is hardly of the binary (either / or) type. The two categories cannot be viewed as exclusive. On another note, the fact that other similarly situated judiciaries around the world do face and navigate similar challenges is illustrated by Balakrishnan Rajagopal's seminal article on the Indian Supreme Court: B Rajagopal “Pro-human rights and anti-poor? A critical evaluation of the Indian Supreme Court from a social movement perspective” (2007) April–June Human Rights Review 157.
3 “Fuel price hike: NANS plans nation-wide protest” (2 September 2005) Daily Champion, available at: <http://allafrica.com/stories/200509020028.html> (last accessed 23 September 2005).
4 For example, see Aiyede, ER “United we stand: Labour unions and human rights in the democratisation process in Nigeria” (2004) 14 Development in Practice 224 at 229–30Google Scholar; and Turner, TE and Brownhill, LS “Why women are at war with Chevron: Nigerian subsistence struggles against the international oil industry” (2004) 39 Journal of Asian and African Studies 63 at 74Google Scholar.
5 OC Okafor “What should African human rights activism become?” (forthcoming).
6 Turner and Brownhill “Why women are at war”, above at note 4.
7 Okafor, OC “The precarious place of Labour rights and movements in Nigeria's dual economic and political transition 1999–2005” (2007) 51 Journal of African Law 68 at 74–78Google Scholar; and O Obasanjo “Briefing to the National Assembly on the report of the national political reform conference and recent debt relief granted to Nigeria” (26 July 2005), available at <http://www.dawodu.com/obas42.htm> (last accessed 3 October 2005).
8 Id, Okafor at 76 and 80.
9 Lewis, P “From prebendalism to predation: The political economy of decline in Nigeria” (1996) 34 The Journal of Modern African Studies 79 at 80 and 82–85Google Scholar; Mosley, P “Policy-making without facts: A note on the assessment of structural adjustment policies in Nigeria, 1985–1990” (1992) 91 African Affairs 227 at 228–30Google Scholar; and Ihonvbere, JO “Economic crisis, structural adjustment and social crisis in Nigeria” (1993) 21 World Development 141 at 143Google Scholar.
10 For example, see: P Mosley, ibid; Amadi, S “Contextualizing NEEDS: Political and economic development” in Amadi, S and Ogwo, F (eds) Contextualizing NEEDS: Economic / Political Reform in Nigeria (2004, Human Rights Law Service and Centre for Public Policy and Research) at 13Google Scholar; IMF “Nigeria: 2005 article IV consultation” in IMF Country Report No 05/302 (25 March 2005, IMF) at para 58; and IMF “Semi-annual staff report under intensified surveillance: Nigeria, 2004” in IMF Country Report No 05/37 (February 2005, IMF) at 2, 9–10, 12 and 22.
11 JO Ihonvbere “Economic crisis”, above at note 9 at 47; and OC Okafor “The precarious place,” above at note 7 at 79–84.
12 Ibid.
13 Ibid.
14 International Crisis Group “Nigeria: Failed elections, failing state?” in Africa Report No 126 (30 May 2007, International Crisis Group) (on file with the author).
15 National Assembly Debates (House of Representatives) (vol 1, no 34, 2003) (on file with the author) at 1064; National Assembly Debates (House of Representatives) (vol 1, no 40, 2003) (on file with the author) at 1243; Report of the Meeting Held by the Senate Committee on Employment, Labour and Productivity with Stakeholders on the Recent Increases in the Pump Prices of Petroleum Products and the Threat of a Nationwide Strike by [the] NLC and Civil Society Groups (October 2004) (on file with the author) at 6; and P Nwaigwe “Fuel hike: Reps move to empower NLC” at 4, available at: <http://news.biafranigeriaworld.com/archive/2004/oct/01/092.html> (last accessed 23 April 2008).
16 Ibid: Nwaigwe.
17 Okafor “The precarious Place”, above at note 7 at 79–84.
18 Regarding Labour's long tradition of broader social struggle, see: Abimbola, A “Pressure groups and the democratic process in Nigeria (1979–1993)” (2002) Nordic Journal of African Studies 38 at 40–41Google Scholar; and Aiyede “United we stand”, above at note 4 at 225–26.
19 Ibid. See also “Streets empty for Nigerian strike” (21 June 2007) BBC News, available at: <http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/africa/6225694.stm> (last accessed 21 June 2007).
20 O Obasanjo “Text of a national broadcast” (8 October 2003) at 2, available at: <http://www.dawodu.com/obas17.htm> (last accessed 20 June 2008).
21 Id at 1.
22 Id at 2–3.
23 Okafor “The precarious Place”, above at note 7 at 79–80.
24 Ibid.
25 Id at 78–89; and Okafor, OC “Remarkable returns: On the influence of a Labour-led socio-economic rights movement on legislative reasoning, process and action in Nigeria (1999–2007)” (2009) 49Journal of Modern African Studies (in press)Google Scholar.
26 Ibid.
27 A Abimbola “Pressure groups and the democratic process”, above at note 18 at 40–41; and ER Aiyede “United we stand”, above at note 4 at 225–26.
28 “Sit-at-home strike holds nationwide” (29 May 2007) The Guardian, available at: <http://www.guradiannewsngr.com/news/article02> (last accessed 29 May 2007); “Refineries mess: Transcorp mafia angry with Yar'Adua” (22 July 2007) The Daily Sun, available at: <http://www.sunnewsonline.com/webpages/features/powergame/2007/july/22/powergame-22-> (last accessed 22 July 2007).
29 “Why we called off strike – Labour” (24 June 2007) The Punch, available at: <http://www.punchontheweb.com/Articl.aspx?theartic+Art2007062418294562> (last accessed 24 June 2007).
30 Federal Government of Nigeria and Another v Adams Oshiomhole and Another, suit no FHC/ABJ/CS/52/2004 (21 September 2004) Federal High Court, Abuja, per Roseline Ukeje CJ (certified true copy on file with the author).
31 Id at 1–2.
32 Id at 2.
33 Ibid.
34 Trade Disputes Act, cap 432, Laws of the Federation of Nigeria, 1990.
35 Ukeje decision, above at note 30 at 5.
36 Id at 3 (emphasis added).
37 Id at 12.
38 Id at 13 (emphasis original).
39 Id at 14.
40 Ibid (emphasis added).
41 Trade Unions Act, cap 437, Laws of the Federation of Nigeria, 1990.
42 Ukeje decision, above at note 30 at 28 (emphasis added).
43 Id at 29.
44 Id at 30–32.
45 Constitution of Nigeria 1999, available at: <http://www.nigeria-law.org/ConstitutionOfTheFederalRepublicOfNigeria.htm> (last accessed 5 July 2008).
46 Cap 10, Laws of the Federation of Nigeria, 1990. This domestic statute incorporates and domesticates the African Charter on Human and Peoples' Rights into Nigeria's internal law and reproduces the text of that treaty. See the African Charter on Human and Peoples' Rights (1982) 58 ILM 21 (the African Charter).
47 As discussed in the next sub-section of this article, art 3 of the NLC's constitution clearly mandates the NLC to “protect, defend and promote the rights, well-being and the interests of all workers” in the “work-place and society” and protect to “pensioners” in similar ways. As important, the same provision also charges the NLC in general terms to “promote and defend trade union and human rights, the rule of law and democratic governance”. What is more, this portion of the NLC's constitution is incorporated by reference into sec 34(1)(e) of the Trade Disputes Act. As such, it is one of the statutory functions of the NLC to defend the human rights of its workers.
48 Arts 16 and 17 of the African Charter guarantee the rights to health and education respectively. The African Commission on Human and Peoples' Rights (the African Commission) has inferred that a number of provisions of the African Charter protect the right to housing. According to the African Commission, “[a]lthough, the right to housing or shelter is not explicitly provided for under the African Charter … it is thus noted that the combined effect of Articles 14, 16 and 18(1) reads into the Charter a right to shelter or housing which the Nigerian Government has apparently violated”: Social and Economic Rights Action Centre and Another v Nigeria, comm no 155/96, reproduced in Fifteenth Annual Activity Report of the African Commission, 2001–02 (on file with the author) at para 60.
49 This is so despite Okene's argument that in the first place, as a matter of law, there is no positively framed right to strike in Nigeria. This article is not concerned with that particular question. It is concerned with whether a fuel price hike dispute can ever ground a lawful strike in Nigeria, even when the right to strike itself is implied and not explicitly stated: Okene, OVC “The status of the right to strike in Nigeria: A perspective from international and comparative law” (2007) 15 African Journal of International and Comparative Law 29 at 40–43Google Scholar.
50 Ukeje decision, above at note 30 at 27.
51 Ibid.
52 Id at 24.
53 E Adegboruwa “Court verdict on NLC and strike: Where Justice Ukeje erred” at 6, available at: <http://www.dawodu.com/adegboruwa1.htm> (last accessed 23 September 2005).
54 NLC Constitution, art 8.
55 Ukeje decision, above at note 30 at 32 (emphasis added).
56 “Nigerian march against fuel hikes” (14 September 2005) BBC News, available at: <http://news.bbc.co.uk/2/hi/africa/4244556.stm> (last accessed 3 October 2005).
57 Ukeje decision, above at note 30 at 31 (emphasis added).
58 Id at 39.
59 Ibid.
60 For examples of scholarship and commentary establishing the anti-poor character and unpopularity of such policies, see: P Mosley “Policy-making without facts”, above at note 9; JO Ihonvbere “Economic crisis”, above at note 9 at 143; S Olukoya “Nigeria's gas crisis: Suffering in the midst of plenty” (14 May 2001) CorpWatch (on file with the author); “The views of Mazi Sam Ohuabunwa, the president of the Nigerian Employers Consultative Association” (13 June 2007) The Vanguard at 1; and the views of the Nigerian government acknowledging the impact of “the price levels [of fuel] on the economy and social life and livelihood of Nigerians” in (24 June 2007) Daily Champion at 1.
61 Nwaigwe “Fuel hike”, above at note 15.
62 Adams Oshiomhole and Another v Federal Government of Nigeria and Another, suit no CA/A/164/M/04 (18 December 2006) Court of Appeal, Abuja, per Mary Peter-Odili JCA with Bode Rhodes-Vivour JCA and Oyebisi Omoleye JCA concurring (certified true copy on file with the author).
63 Id at 9.
64 Id at 20.
65 Ibid.
66 Id at 9–12.
67 Id at 13.
68 Id at 24.
69 Ibid.
70 Id at 25.
71 Id at 21–25.
72 Id at 25.
73 See the recent Court of Appeal decision on the Public Order Act. The official report of this decision is as yet unavailable, but it was widely reported in the Nigerian media. See “Appeal Court quashes Public Order Act” (12 December 2007) The Punch, available at: <http://www.punchng.com/Articl.aspx?theartic=Art20071212315193> (last accessed 5 July 2008).
74 Federal Government of Nigeria and Another v Adams Oshiomhole and Another, suit no FCT/HC/CV/350/2004 (16 January 2004) High Court of the Federal Capital Territory, Abuja, per LH Gumi CJ (2004) 9 Weekly Reports of Nigeria 129.
75 While the Abuja High Court ranks at the same level in the judicial hierarchy as the Federal High Court which issued the Ukeje decision, it ranks lower than the Court of Appeal which delivered the Odili decision.
76 Gumi decision, above at note 74 at 130 (emphasis added).
77 Ibid.
78 Ibid.
79 Id at 134.
80 Id at 135.
81 Id at 137.
82 Id at 135–36.
83 Id at 137.
84 Ibid.
85 Id at 137–38.
86 Id at 136–38.
87 Id at 135.
88 Id at 138 (emphasis added).
89 See the discussion in the second section of this article. See also Okafor “The precarious Place”, above at note 7 at 82.
90 Nwaigwe “Fuel hike”, above at note 15.
91 “Nigeria raises fuel prices after banning strike” (24 September 2004) Naijanet.com at 1, available at: <http://naijanet.com/news/source/2004/sep/24/1000.html> (last accessed September 2004).
92 M Oloja, M Okwe, E Anufuro and Y Lawal “Govt sacks PHCN chiefs” (24 June 2007) The Guardian, available at: <http://www.guardiannewsngr.com/news/article01> (last accessed 24 June 2007).
93 On the massive unpopularity of these decisions (leading to their perceived illegitimacy), see Onwubiko, E “Decapitation of Labour and the end of opposition” (24 September 2004) The Guardian at 7Google Scholar, available at: <http://odili.net/news/source/2004/sep/24/31.html> (last accessed 24 September 2004).
