Workmen’s Compensation Act outdated —Bamidele Aturu

By Kayode Matthew Posted to the Web: Friday, June 16, 2006

 

In the course of their employment, workers sometimes suffer injuries which may arise as a result of their negligence or that of their employers or even a co-worker.  The injuries may be so severe as to incapacitate the affected workers for life or even result into death. The challenge in such a situation is the need for adequate  compensation for the injured workers or the dependant families in fatal industrial accidents. But often employers refuse to pay adequate compensation for accidents  that occur at work places and even in the more industrialised countries, the amounts paid as compensation could, in some cases, be very ridiculous. In Nigeria, the  Workmen Compensation Act designed to provide for the payment of compensation to workers who suffer injuries in the course of their employment came into force  on June 12, 1987 but the Act has been discovered to be inadequate in dealing with some kind of injuries sustained in the course of work.

Apart from the inadequacy of the Act there is also the problem of casualisation of the workforce which the Nigerian Labour Congress has been fighting against for  quite some time now as well as the need to have a safe and accident free industry. It was against this background that members of the House of Representatives’  Committee on Labour, Productivity and Employment, in collaboration with Friedrich Ebert Stiftung (FES) held a two-day workshop in Makurdi, Benue State from  May 30 - 31 2006 on the theme: “Workers’ safety and compensation in Nigerian Industry.” The workshop was attended by lawmakers, representatives of the  Ministry of Labour as well as the trade unions while seven papers were presented by experts on different topics covering compensation, health and safety in industry.

The Resident Representative of FES Dr Harald Bammel in his speech at the workshop argued that the rights of workers and the respect for those rights are crucial to  understanding the meaning of Human Rights and democracy in any state. According to him, “safety measures all the world are not easily put in place or recognised by  employers without a struggle from trade unions, neither is compensation often adequately paid for accidents that occur at workplaces. Even in the more industrialised  countries of the North, amounts paid as compensation to workers could in some cases be very ridiculous.”

Dr Dele Seteolu of the University of Lagos in his paper titled “The role of trade unions in ensuring compliance with health and safety laws in industry,” submitted that  “the casualisation of work force is a major fall out of the globalisation process and a basis of exploitation and control. The critical sectors such as the Oil and the  Banking industries are populated with casual workers that are denied work place rights on account of their status. The casualisation of labour is a strategy to exploit  the worker, abdicate work place responsibilities and reduce the cost of reproducing capital.” According to him the emphasis of the Nigerian state on foreign capital or  investment as opposed to the development of local entrepreneurship has assisted to sustain the practice adding that “the casual labour is also sustained through the  compradorial nature of the business and political elite in Nigeria who are preoccupied with dependent capitalist expansion.”

In his own paper titled “Casualisation of workers, work ethic and industrial accidents,” Professor Sam Egwu of Kogi State University Anyigba contended that “the  tendency on an ever increasing scale in industries and at various work places straddling the private and public sectors is not engage workers on full-time paid  employment, thereby subjecting the work force to all kinds of uncertainties including security of job, other forms of entitlements and retirement benefits. A key issue in  the phenomenon of casualisation in Nigeria is that it represents a gross violation of the Nigerian Labour Act and the International Labour Organisation Convention to  which Nigeria is a signatory. In this sense casualisation first and foremost, amounts to a frontal assault on the dignity of laboutr especially when it is considered that a  substantial number of workers who fall within this category are those who possess the basic qualifications for full-time employment.

As a way forward professor Egwu recommended that “state run corporations and ventures should show examples by promptly compensating workers who suffer  injuries and death in the course of discharging their responsibilities. The ministries of Labour and Industry should develop closer collaboration in monitoring new  industrial establishments so as to identify and publicise illegal companies and develop a system of ‘naming’ and ‘shaming’ which should be equally publicised; the need  for the state to ensure that corporate bodies and multinationals discharge their social responsibilities to employees and Nigerian citizens at large; the need to review the  1987 Act to compell small scale and medium scale employers to set aside a percentage of their initial capital with appropriate body to be used to compensate  workers and their families in the course of industrial accidents or deaths; the review of the law should create oversight institutions and clear mechanisms of  enforcement including making it possible for citizens and individuals to seek judicial intervention in the course of effecting compensation.”

A legal practitioner, Mr Bamidele Aturu who X-rayed the Workmen Compensation Act in his presentation quarreled with section 3 of the Act which he said covers  only injuries that occurred by accident and wondered “what happens to a bank worker who was shot by armed robbers while attending to customers or to an oil  worker kidnaped by militants on a rig.” According to him, whatever injuries arising from those two instances cannot be attributed to an accident if one accepts the  definition of accident as ‘an unintended and unforseen injurious occurrence.’ He submitted that “the issue of using the regular courts to determine the quantum of  compensation in cases where the Act does not fix one seems problematic. Apart from such cases suffering long adjournments, the truth of the matter is that the regular  courts are not suited to handle employment-related issues as the National Industrial Court. It has also been observed that the requirement that a workman seeking to  enforce his or her claim in the court should do so in a court having jurisdiction in the area often work needless hardship in some cases.” Mr Aturu further argued that  “the compensation fixed by the Act are in many cases contemptible and incapable of compensating the worker or the family of the worker in a case where the worker  died in the course of his or her employment.”  He concluded that the existing Workmen’s Compensation Act is outdated and needs serious and urgent tinkering with  in order to bring it in line with modern day realities at the workplace.

In a communique issued at the end of the workshop the participants noted that:
•There is gross violation of compensation, health and safety regulations in industries in Nigeria and that employers place more emphasis on material incentives as a  substitute for proper safety measures

•The Inspectorate Division of the Ministry of Labour is currently understaffed and has weak operational capacity in the discharge of its statutory duty  while  casualisation is persistent in industry due to the unwholesome embrace of globalisation and the high level of unemployment m Nigeria
•The current Workmen Compensation and Factory Acts are inadequate, outdated, and faulty in several respects
•The Courts are unable to satisfactorily resolve matters relating to Compensation, Health and safety of workers. And the legal processes are often cumbersome,  protracted and frustrating.

The workshop in-session then recommended that:
•More Labour Inspectors and requisite operational facilities should be provided. Additionally, the Inspectorate Divisions at the state level should be adequately  equipped for their inspection and supervisory functions.

•Compensation, Health and safety matters should be shifted from the regular courts to the National Industrial Court (NIC) and that the Federal Ministry of Labour  should issue Recruiters License to Labour recruitment and management agencies with specified Code of Practice so as to check sub-contracting and violation of  Health and Safety rules of employees in industry. 

A pitiable polity, indeed!

By

Bamidele Aturu

I had intended to do a series of articles shortly after the April 19, General Elections on my experience as a gubernatorial candidate in Lagos State. I did not want to lose any time because of the urgency of the prescriptions or lessons that I consider would naturally flow from my "findings" as it were. As it turned out I was not quite a master of my time.

After two months of excruciating campaigns that took me through the length and breadth of Lagos State, I got back to my desk to confront, happily though, compelling professional commitments that could not wait. Not too pleasant was the fact that in the midst of my tight schedule 1 was seized by a debilitating malaria yes, malaria - part of the tragedy of the polity - perhaps also a product of my foray into electoral politics. But with every passing moment the comprehensive rot I encountered in all spheres of our life during the campaigns keep flooding back to me. I cannot wait any longer. In fact I dare not wait if I believe in the future of this country, nay, our people.

I intend to have these reflections in series. Each piece will attempt to expose the rot in certain institutions and aspects of our life as I saw and still see them. I intend that they will be both analytical and prescriptive. The reader if she likes may call them "lamentations". But I assure her, they are not personal lamentations, but lamentations about a nation so richly endowed with natural and intellectual resources but generally languishing under the worst form of mediocrity and raw gansterism. Personally as many of our compatriots I did not understand how this punishing paradox came about. It is fashionable among our many armchair columnists to suppose that the griping poverty in the land makes it easy for gangsters, fraudsters and drug addicts and barons to buy voters and their votes. Poverty no doubt plays a part. It now seems to me it is not the cause. I believe that on deep reflection it is possible to see International Finance Capital as the chief culprit. This is not just a matter of looking for scapegoats or engaging in reductive analysis. I will illustrate the case with a few practical examples. This illustration and its already stated conclusion, is the theoretical framework of my reflections on the elections, if any is needed.

It all began like this. Not quite long after its flag independence, Nigeria started to produce eminent intellectuals who were amongst the best in their chosen fields. Wole Soyinka, Chinua Achebe, Kenneth Dike, Hezekiah Oluwasanmi, Iya Abubakar, Chike Obi, Ayodele Awojobi, Edwin Madunagu and Toye Olorode became justly famous for their legendary intellectual capacity and abilities. They also exploded the Eurocentric myth of the intellectual inferiority of blacks. These brainy scholars were poised to launch Nigeria, nay Africa onto the centre stage of "world civilization". But the truth is that their emergence was also inherently disruptive of the capitalist order that could thrive only when there are "hewers of wood and drawers of water" classes or nations. If these intellectuals become dominant and enjoy political relevance, it would not be long before they liberate and develop their people and society. Something had to be done. Howbeit subtly.

That something, I posit, was the introduction first by the Trans-National Corporations (TNCs) of the dubious policy of employing graduates who came out in first class to work in banks or accounting/consulting outfits regardless of their disciplines. I will only employ the example of Nigerians I know closely to drive home the point. Chika Mbonu, the current Managing Director of Assurance Bank is one. He passed out of Government College Umuahia in Division 1. At the University of Ife he made a first class in Civil Engineering and was the best graduate in the entire Faculty of Engineering. Of course, throughout his 5 year stay he was a University Scholar. Upon graduation Chika had been captured by Arthur Anderson from where he later took the ICAN final examinations and had the best result in the entire country. Today he is not a Civil Engineer but a Banker. The other fellow is Suru Omonigho. Suru's capacity for solving mathematical puzzles is extraordinary. At Methodist High School Okitipupa in Ondo State, Suru sat for Additional Mathematics in the School Certificate Examination without a teacher for the subject and of course had an A. Also at Ife where he studied Engineering Physics he graduated as the best student in the faculty. He is also now a Chartered Accountant working for Ernst & Young. I know that the reader can supply names of first rate scholars who now do routine clerical, if "well-paid", work. I should not be misconstrued as disparaging banking. I have no quarrel with first class accountants, economists or Banking and Finance graduates working as bankers. But something is awfully wrong with a country whose first class nuclear engineers are counting money in a thirdrate Indian Bank in Nigeria.

The policy of International Finance capital seems to be two-pronged: Distract or deflect the Nigerian geniuses from their original fields to less challenging but "well-paying" endeavours or attract them to employ their geniuses in America or Europe to develop the latter. Thus when you read the stories of the Oditas, the Emeagwalis, the Baderos just remember that there are several others, perhaps better than them, who are vegetating in some obscure bank or oil company.

We have abandoned our laws, technology, science etc to their less endowed compatriots who are not fit enough to work for mushroom banks. What a pity!  In the next piece I intend to look at the politics of corruption and corruption of politics. 

July 2003 

Public Order Act is unconstitutional, says Aturu By Bamidele Aturu Esq THE disruption by Police authorities of the anti-third term meeting facilitated by some legislators in Abuja last week on the ground that the organisers did not seek or obtain a police permit has compelled a dispassionate legal analysis of the Public Order Act which was the warrant claimed for the disruption. It has become urgent and necessary to examine the constitutionality of this controversial legislation given conflicting decisions of our superior courts on its applicability in a democratic era. Can the National Assembly enact the Public Order Act? The first litmus test a statute subjected to constitutional scrutiny particularly in a federal state must pass is whether the body that made it or that is deemed to have passed it (the legislature) is competent to do so. The Public Order Act is an existing law by virtue of section 315 of the Constitution of the Federal Republic of Nigeria, 1999. Since the present Act replaced all the public order laws in the states in 1979 and became a Federal Act in that year, section 315 of the Constitution deems it to be "an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make law". (emphasis supplied). The question which readily comes to mind then is: Does the National Assembly possess the legislative competence to enact the Public Order Act? The answer in my own opinion is a capital YES. This view is based on Section 11(1) of the Constitution which provides as follows: "The National Assembly may make laws for the Federation or any part thereof with respect to maintenance and securing of public safety and public order and providing, maintaining and securing of such supplies and services as may be designated by the National Assembly as essential supplies and services". That section clearly empowers the National Assembly to enact the Public Order Act (see Supreme Court decision in Ogun State v. The Federation (1982) 3 NCLR 166. But this alone does not make the Act constitutional. As the Constitution must be given a liberal and purposive construction we need to pursue the matter further by examining other provisions of the Constitution particularly the provisions dealing with human rights to determine whether the Public Order Act can stand in the light of those provisions. The Public Order Act and Human Rights It is imperative to begin our consideration of the impact of the Public Order Act on established and guaranteed human rights of Nigerian citizens by highlighting a popular misconception about the Act to the effect that to hold a public meeting one requires a police permit. There is no requirement for persons who intend to hold a public meeting, assembly or procession to obtain Police permit. Indeed there is nothing called Police permit under the Act. "Police permit" is a strange importation into the Act in the era of military despotism. Thus, it is absolutely false for any person to insist that Nigerian citizens need police permit before they can assemble. The governor is the only person who may authorise a superior police officer not below the rank of a Chief Superintendent of Police to issue general licences to "any person desirous of convening or collecting any assembly or meeting or of forming any procession in any public road or place of public resort" (see Sections 1(2) & (3) of the Act). The licence is authorised by the Governor and issued by the Police. Where the Governor refuses to authorise the issue of a general licence, no police officer may issue it; and where he or she authorises the issue of the licence, no police officer may refuse to issue it. The police would seem to have no choice on the matter. It is a governor's licence and not a police permit. The next issue to consider is whether the Police Order Act does not violate the human rights of Nigerian people and if it does whether it ought to stand. In my own opinion the Act which was promulgated by the colonial power to subjugate Nigerians and prevent them from challenging colonialism is in gross violation of the rights of Nigerians as guaranteed by the Constitution and the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act, Cap 10, Laws of the Federation of Nigeria, 1990. It is for this reason unconstitutional and I cannot see why a court of law properly advised cannot strike it down using sections 315(3) which unambiguously provides: "315(3) Nothing in this Constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law that is to say - any other existing law; a Law of a House of Assembly; an Act of the National Assembly; or any provision of this Constitution". For the avoidance of any doubt whatsoever the Act in its totality is in conflict with Section 40 of the Constitution and Article 11 of the African Charter which respectively provide as follows: "40 Every person shall be entitled to assemble freely and associate with other persons and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest". "Article 11 - Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restriction provided for by law in particular those enacted in the interest of national security, the safety, health, ethnics and rights and freedoms of others". To be sure there is derogation clause in Section 45 of the Constitution to the effect that: 45 - (1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society - in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom of other persons" (emphasis supplied). It is, however, submitted that for that clause to operate in validating the Public Order Act, it must be shown that the Public Order Act is "reasonably justifiable a democratic society" or that it constitutes a "necessary restriction". It will be laughable indeed to argue that a law like the Public Order Act which prevents five persons (see Section 12 of the Act) from having a public meeting unless they have a licence issued on the authority of the Governor is "reasonably justifiable in a democratic society". It might have been "reasonably justifiable in a colonial society and by the colonizers" but it is certainly an affront on the rights of Nigerians in this century. There are adequate necessary restrictions in our Penal and Criminal Codes that render those contained in the Public Order Act unjustifiable and simply draconian. The point must also be made that the Supreme Court decision in Ogun State case supra merely affirmed the competence of the National Assembly to enact the Public Order Act having regard to section 11 of the Constitution and not the constitutionality of the Act as enacted which was not an issue before the court. Competence to enact a law and the constitutionality of the law enacted are obviously two different issues that should not be mixed together. The implication of affirming the validity of this obnoxious colonial artefact is simply outrageous. If the Act were to be obeyed by Nigerians, registered political parties, both reactionary and progressive, cannot hold their meetings without a general licence! Even certified fascists would recoil at such a barbaric law. The Act cannot stand with the Constitution. One may even go a step further to say that the Act is incapable of obedience without violating the Constitution. It does not seem to me a valid argument to say that any decision of the court affirming the validity of the Act would need first to be appealed. The point is that a person who is not a party to a proceeding cannot appeal a decision arising therefrom unless it can be shown that he or she has sufficient interest in the matter. Second, the only way the Act can be challenged is by positively breaching its provisions; for it is then and then only that live issues can arise for determination by the courts as the latter are not fora for determination of academic or hypothetical disputations. Thus, if one breaches the law in order to be able to challenge it in court, one is saying one of two things, namely that the Act is so draconian that it cannot be regarded as law or that it is an unjust law that does not deserve to be obeyed. So, saying that it is the law today does not help our democracy. Indeed it provides ammunition for the enemies of democracy. There is no doubt that I am in good company concerning the view I hold that the Public Order Act is unconstitutional. For as far back as 1993 the Supreme Court of Ghana in New Patriotic Party vs IGP (2000) 2 HRLRA Vol. 2 P. 1 tore into pieces a similar legislation in Ghana, namely: Public Order Decree, 1972. The court held that the Decree was unconstitutional. Among others, the Supreme Court of Ghana, made the following remarkable comments: "1. The Public Order Decree is a fall out of the colonial status from which Ghana evolved as a nation; it is part of the received common law inherited from the British colonial masters. These laws were often qualified by ordinances and regulations designed to remind the citizens of their subject status and to ensure that the colonial masters had the peace and quiet necessary to enable them live among the colonised and rule them. By section 12(a) of the Public Order Decree 1972 of Ghana, a police officer has undeterred powers, and without ascribing any reasons therefor, to stop and cause to be dispersed any meetings or processions in any public place. Such absolute power conferred upon a police or administrative officer or a Minister of State to abridge the fundamental human rights of the citizen is unconstitutional. When citizens meet or process in a public place in pursuance of their constitutional right to form or hold meetings and processions they are only subject to the Criminal law as contained in the Criminal Code Act 29 of 1960. Such an assembly or procession to be unlawful must be for purposes forbidden by law or with intent to carry out their common purpose in such a manner as to endanger public peace. Even if having assembled there for a lawful purpose, and with no intention of carrying it out unlawful, they had knowledge that their assembly would be opposed and with good reason or purpose that a breach of the peace would be committed by imaginary opponents, they would not be guilty of an unlawful assembly The Deputy Attorney General appearing for the defendants expressed concern that decision in favour of the plaintiffs in this case would make the work of the police more difficult. That may be so but this is the price we have to pay for democracy and constitutional order. The police like any other organ of Government are required to operate within the four walls of the constitution, but with their wide crime preventing power, I believe they can rise up to the occasion and satisfactorily discharge their duties within constitutional limits despite any difficulties. In any case article 200 seems to have envisaged and taken care of any difficulties the Police might encounter in having to work under a new constitutional order. It made provision for the Police to be equipped and maintained o perform its traditional role of maintaining to perform its traditional role of maintaining law and order. It is hoped that this provision would be complied with by the authorities concerned, to enable our hard-working Police discharge efficiently their onerous duty of maintaining law and order in society. Most of the restrictions on our liberty which, after years of repression, we have come to accept are inconsistent with democratic norms. Except in time of war, or when a state of emergency has been declared, it cannot be right for any agency of the executive to suppress the free expression of any opinion, however unpopular that opinion may be. The believer in absolutism and the anarchist, those who support and those who are opposed to abortion those who favour and those who oppose equal rights for women-yes, lesbians and homosexuals too - are all entitled to the free expression of their views, and the right to assemble and demonstrate in support of those views and to propagate those views. Once the State takes for itself the power to licence associations, assemblies and processions it resort to support of the status quo, and the only way of changing the prevailing state of affairs is by he use of force". (emphasis added). Our superior courts, I believe, should find the above dicta persuasive in their duty of nailing the coffin of the Public Order Act. This should not really be difficult as our own Supreme Court had in Abacha vs Fawehinmi (2000) 6 NWLR (Pt. 660) 228 held that: "The African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria, 1990 is a statute with international flavour. Being so, therefore, if there is a conflict between it and another a statue, its provisions will prevail over those of that other statute for the reason that it is presumed that the legislature does not intend to breach an international obligation. Thus it possesses a greater vigour and strength than any other domestic statute". It follows that the Supreme Court should find no difficulty in finding that Article 11 of the African Charter ought to prevail over the restrictions contained in the Public Order Act. As the Supreme Court of Ghana showed the restrictions in the Criminal and Penal Codes ought to suffice to protect other persons' right in exercising one's right to assemble without previous authorisation by a Governor or the Police. Chukwuma vs COP: What significance? The Court of Appeal in Chukwuma vs COP (2005) 8 NWLR (Pt. 927) 278 held that: "any police officer of the rank of Inspector or above may stop any assembly, meeting or procession for which no licence has been issued..." It is my respectful submission that the decision was per incuriam as the case of Abacha vs Fawehinmi supra was not cited and canvassed before the court. If this case had been cited I have no doubt it would have reached a different conclusion. Indeed, the decision contained in just eight pages, did not refer to any case whether foreign or Nigerian. For a case that touched such a fundamental issue as the right of Nigerians to assemble, that was curious. The court also based its decision on the fact that the trial court relied on unchallenged evidence to the fact that there were factions in the Igbo Community whose meeting the Police disrupted. The court consequently held that the disruption of the meeting was justifiable on that account. This, with the greatest respect, is a misunderstanding of the law of unlawful assembly. The Ghana Supreme Court in the NPP case showed a better understanding when it held: "In some liberal countries the courts had in the course of time been inclined to extend the offence of unlawful assembly to gathering for a lawful purpose if those present at the meeting, procession or demonstration behave in such a way as to give rational men around reasonable ground to fear a beach of the peace. - see The Queen vs. Vincent (1839) 9C & p. 91 at p. 109. But the law did not extend to holding such meeting to be unlawful which in itself did not give rise to any fear but was threatened by disturbances from an outside source like aggressive hangers on. So in the English case of Beaty vs. Gillbanks, (1882) 9 QBD 308, where a court of petty sessions convicted local Salvationists of unlawful assembly and ordered them to find sureties to keep the peace, the Divisional Court on appeal held that since the association was for religious exercises, but the disturbances of the peace was caused by the Skeleton Army, opponents of the Salvationists, and the Salvationists themselves had committed no acts of violence, their assembly and procession could not in itself be unlawful, and so it was wrong to convict them of unlawful assembly and bind them over to keep the peace. This is a case that warned the police that they could not take the easy course of dispersing an otherwise lawful assembly for the simple reason that they, the police, feared opposition from another body". (emphasis added). Conclusion The Public Order Act gives us a bad name as a people. It shows clearly that the roots of authoritarianism are yet to be destroyed. The Supreme Court should at the earliest judicial opportunity uproot it and consign it to where it belongs: the dustbin of history. For its part the National Assembly should repeal immediately the obnoxious legislation. Background as activist helps me as a lawyer By PETER ANOSIKE Wednesday , Febuary 2, 2005 By PETER ANOSIKE Wednesday , Febuary 2, 2005 Bamidele Aturu has criticised the present criteria for awarding Senior Advocate of Nigeria (SAN). He said that rather than been based on the number of cases filed, it should be based on specialisation. "The trouble in Nigeria is that at times, you see that there are characters you can easily point out as not been worthy of such position. I have always advocated that we should begin to give SANship award on the basis of specialisation. What is the need of having a lawyer as a SAN, while he has not been to Labour Court or to the Industrial Court? I feel that the best thing should be, for instance, look at the labour lawyers, choose the best among them and make him SAN, look at the Marine lawyers, choose the best among them and make him SAN. Instead of using number of cases filed as a criteria, which even make some lawyers to be filing frivolous cases," he said. Reading Law "I had no intention of being a lawyer. I studied Physics and graduated in 1987. After my graduation, I was posted to Niger State for my National Youth Service Corps (NYSC). There I was selected for the Niger State NYSC award but I rejected it. My reason was that I saw it as a military tokenism. That angered the management of Niger State NYSC and they withheld my discharge certificate." Following this, I wrote university entrance exam again and got admission to read Law at Obafemi Awolowo University, Ile-Ife. I graduated in 1994 and was called to the bar in 1995. First day in court I can say that I was more fortunate than most of my colleagues on my first day in court. My background as an activist probably did the magic. In my days as a student, I was a student leader and I had had opportunities to interact with vice chancellors, government officials and I had also made my own input on how our society could be developed at a young age. That made me not to have a bad first day in court. On that day, I appeared alone before Justice Ilori on a case of arbitration. The other counsel was not in court. The judge said that he(other counsel) had written to inform him that he was ill and would not come to court. When the judge told me that, I was disappointed. You know as somebody who was coming into a profession, there was this eagerness of a beginner. I was ready to do an overall. "Courage is number one. The other is hardwork. You must be hardworking. If you are not hard working, those who are going to be your secretaries, clerks, counsels in chamber will not take your business serious. They will take cue from you and run the place down. Clients will not also hang out for a long time with a lazy lawyer because he won’t be keeping appointments in court. He will be filling very frivolous and meaningless briefs and latter he is not likely to win cases." Memorable cases One of my memorable cases was the leadership tussle between the Okamura and the Irabor factions of the maritime workers union of Nigeria. "I got that case and they went to about three different courts and we were able to challenge them successfully. First, they went to the Federal High Court, we challenged them. I was the counsel to the union. There the case was struck out." He said that one interesting thing about the case was that at the Federal High Court, he had argued that it was only the National Industrial Court (NIC) that had jurisdiction on the case which is inter-union dispute and that the court agreed with him. Another memorable case was when I appeared against Chief Rotimi Williams. According to him, the case was between the Honourable Minister of Finance and the maritime workers union where he asked the court to disallow Chief Rotimi Williams from representing the maritime workers union on the ground that he did not have authority. Chief Williams told the court that whichever way the case ended, the matter he knew would be an appealable case. Client management and development Court management and development is a very tricky thing, in the sense that the best way to manage ones clients is to be updating them on court proceedings. One should always let ones clients know the stages in the case and the strategies to be adopted According to him, it is not mandatory that they would approve all the strategies but that one should try to carry them along. Also, in winning clients one should be careful so that one would not run foul of the professional ethics. You have to be careful, but in managing them, you have to show enough industry in what you are doing. You should be able to attend court regularly and to feed them back and should be able to charge them reasonably. If you charge them too much, they will run away. Mikel's Career in Jeopardy - Lawyer By Duro Ikhazuagbe, 10.05.2005 Thursday, October 6, 2005 John Mikel Obi's refusal to honour the contract he signed with Premiership giants Manchester United could spell doom for his soccer career just getting off the block. The Lyn FC of Norway gifted midfielder whose manager has appealed an earlier verdict by FIFA's Dispute Resolution Chambers upholding the deal with Man United, has his eyes on joining Chelsea's Stamford Bridge. But Bamidele Aturu, a Lagos attorney with wide knowledge of sports law, told THISDAYSports that Mikel has no option but to honour the contract sealed in April this year. "In law, what Mikel ought to understand is that he is binded by what ever contract entered into by his principal, which in this case is Lyn FC, the club he has a contract with till end of December, 2005. Since he signed the papers and has even gone to accept a Man U jersey, as evidenced by the pictures published in the media without him, (Mikel) refuting them, he must honour the deal," observed Aturu, who became a national figure following his refusal to accept the NYSC Niger State award in the early 1980s. Though Mikel still has to wait till the end of this month for FIFA’s final verdict. Aturu insisted that it will be sad if he is asked to go to Old Trafford and he thinks otherwise. "What is happening to Mikel is a big lesson for Nigerian players and players' agents who want to play smart. It is high time Nigerian footballers started to take seriously the type of contract they are getting into," he noted. The attorney, who offered free legal services to the newly inaugurated Association of Professional Footballers of Nigeria (APFON), called for a national summit of footballers and stakeholders in the sport to fashion a way on how to move it forward. Aturu warned Nigerian policy makers to avoid situations that will return the country into a pariah state. "For instance, laws like the NFA Decree 101 that is in contravention of FIFA statues must be avoided in future." Lawyers and nation-building By Bamidele Aturu

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NIGERIANS lawyers met in Enugu between August 25 and 29 under the aegis of their rejuvenated platform, the Nigerian Bar Association NBA). The conference was significant for a number of reasons. First, it was not an election conference. Issues were discussed exhaustively and more objectively than is possible in an election conference where partisanship and group or state sponsorship or candidates often becloud sound professional and patriotic judgement.

Second, the conference experimented with the idea of conducting its business in two broad sections, namely: business and general practice sections. The idea was to encourage lawyers with specialist interest to attend sections on the basis of their preference or encourage them to develop one.

Third, the event took place against the background of some of the most worrisome infractions of the Constitution of the country and despicable trampling of the rule of law. We have in mind the atrocious treasonable abduction of a sitting Governor in the neighbouring Anambra state by a group of hoodlums erroneously nicknamed 'godfathers'; the unilateral conviction of Mr. President to tinker with the existing system of democratic local government under the guise of reforms even when the Constitution puts it beyond doubt that parliamentary authority for such far-reaching exercise resides in the States Houses of Assembly; the asylum granted the Grand Butcher of Africa, Mr Charles Taylor also without consultation and with a laughable and embarrassing presidential immunity from international prosecution and justice which violates our obligations under the Treaty of Rome; and also the rising wave of judicial rascality discernible from the reckless abuse of ex-parte orders.

One the balance it would appear that the conference was a huge success. Nonetheless, there is a lot of room for improvement. Since the theme of the conference itself was 'lawyers and nation-building', it is crucial to address some of the concerns that arose during the conference while the issues are still hot, as it were. The issue of specialisation ought to receive a better treatment than it did at the conference. The counsel who did the paper on specialisation did not help matters as he devoted more than half of the paper to defending his role in the recent controversial ex-parte orders. He ought to have been called to order by the Chairperson of the session.

The quality of contributions that lawyers as professionals can make to the economic and democratic development of their country is largely dependent on their expertise which is itself a function of specialisation. The real bane of legal practice in Nigeria in my own opinion has been its general orientation. For me there is a very thin dividing line between quackery and generalist practice. Using labour law which I am familiar with, generalist practitioners have frustrated the specialised industrial courts which were created for speedy and industrially-informed disposal of trade disputes. They argue seductively that under the Constitution the various High Courts have jurisdiction except as specifically limited by the Constitution itself to entertain industrial disputes.

Yet these practitioners do not put forward the same type of specious constitutional argument to vest the courts with jurisdiction in respect of actions brought against foreign diplomats. Of course, such actions as well as intra-political party disputes are not justiciable on grounds of public policy. The damage inflicted on our economy as a result has been that industrial disputes which by their very nature ought to be resolved quickly persists with adverse effect on industrial harmony and productivity. Every lawyer who has but the faintest acquaintance with comparative labour law appreciates that the creation of specialised industrial courts is a matter of public policy. In any case, there are respectable decisions of our superior courts to the effect that where there are judicial avenues for ventilation of grievances, a law creating a special court will not be held to be unconstitutional on that ground alone. While the jurisdictional arguments take years to resolve, the economy would have suffered irretrievably.

The conference planners ought to have created sections for labour, aviation, banking, oil and gas, environment, human rights, et cetera rather than lumping all these under business section. The advantage of having such distinct section is that more robust discussions and debates would be stimulated as there would be fewer people attending the sections, unlike the unpalatable experience at the last conference where one third of participants had no seats throughout the sessions.

Still on specialisation, I had expected a resolution that would call for lawyers to be conferred with the rank of SAN based on measurable expertise in distinct areas of the law. After all, there are no consultants in medicine who are also not specialists in their field. A situation in which man becomes a SAN on the basis of quantity of mundane briefs on areas which add nothing to the advancement of law can only serve to ridicule the noble profession. The Bar conference was practically silent on the rise and rise of corruption in Nigeria in spite of the advertised phoney war allegedly being waged on corruption by the present regime. Why the issue of contractual improprieties noticed in the COJA awards was not reflected in the communique in spite of its being urged without opposition is a misdemeanour which the communique committee must answer at the next conference.

The point must be made that for the bar to play its role credibly and creditably, it must be counted on the side of our people; for they are watching. One had expected the bar which spent huge sums of money on election monitoring to be unambiguous on the issue of globally acknowledged widespread electoral malpractices that indeed marred the last general elections and produced all sorts of banditry and arrogance of stolen mandates. The impression must not be created that the Bar is lilly-livered or pusillanimous. I personally have a lot of respect for the present leadership and I expect them to rise to the occasion. One way of doing that is to constitute immediately the political committee unanimously agreed on but which incidentally was not again reflected in the communique.

Doubtless, I enjoyed myself thoroughly at the conference. For this I must remain eternally grateful for the warmth and culinary expertise of the good people of Enugu. Their 'akpu' was something else. Same goes for their well-blended 'egusi' soup. This is not to suggest that there are no bad guys in Enugu. On our last night my friend and I met at least two of such. On our way from the restaurant we were accosted by two armed young men in their twenties.

They took our handsets, purses and all our monies, wrist-watches and complementary cards. I was lucky; they did not hit me. My friend was not as lucky. They drew blood from his head by hitting him with the butt of their pistols. As we left the scene my friend ask me if the pistols were real or fake. I told him he was in a better position to determine that as they were not used on me. I tell you it was not funny at all. The truth, however, is that the Enugu conference is an unforgettable experience.

Voyage of Illegality

By Bamidele Aturu

Local government plays both ideological and functional roles. At the ideological level it serves to legitimise the modern state by giving an impression or really serving as a reminder that state business can be carried on without the galling alienation of the masses that is the norm in the epoch of globalisation.

Functionally, local government may, in certain cases, serve as the vehicle for bringing development to the grass-roots. But appreciation of these roles by the ruling elite depend largely on the character and historical foundations of the elite themselves. This is perhaps not the forum for characterising the ruling class in Nigeria. However, it suffices to state as axiomatic that the ruling class in Nigeria is generally pre-modern. I have used this term as a compendium for the generally backward tendencies of the class. It certainly takes into consideration its neo-colonial and prebendal attitudes.

Our leaders as the repositories of state power are often flatteringly referred to have demonstrated their utmost backwardness in their hostility to the idea of virile local government. It is only against this background that the covert and subtle agenda to annihilate the local government councils can be understood. Nevertheless, it would be erroneous to assume that the enemies of the idea of local government among the ruling class are homogenous, although the devastating effect of their hostility is the same, namely, the deliberate under-development of our democracy. Our task in this piece is to expose the various trends in the ignoble campaign.

However, it is necessary to show that their hostility is indeed contrary to the laws made by them on the subject. It is only an insensitive ruling class that will ignore salient provisions of the law made by it as ours do routinely.

Section 7 of the Constitution of the Federal Republic of Nigeria, 1999 unambiguously provides that "the system of local government by democratically-elected local government councils is under this constitution guaranteed; and accordingly, the government of every state shall, subject to Section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils." Section 8 merely deals with the legal mechanism for creating additional states by the National Assembly and additional local government councils by the state Houses of Assembly. It does not in any way detract from the fact that once created the states or local government councils should be run by "democratically-elected" governments.

A few other issues arise from the provision of Section 7 of the Constitution. First is the issue of a democratic local government. While political scientists may eternally split hairs about the definition of 'democracy," everyone seems to agree that the core values of democracy include the following irreducible minimums, namely, periodic free and fair elections, consultation, respect for the rule of law, and some reasonable separation of powers to prevent the emergence of absolute despotism. Thus, it is clear that the constitution, in spite of its numerous imperfections in its letter and spirit, prescribes the existence of democratic local government councils in Nigeria. The fact that the council elections have not been held over a year since they are due is a continuing breach for which the president and all the governors are morally and legally culpable. This is because for elections to be democratic they must only be free and fair; they must also be periodic.

Second, "the government of every state shall ensure their existence under a law" is a phrase that requires further legal analysis. This phrase puts it beyond any doubt that it is the responsibility of the states and not that of the Federal Government to make laws on local government. Section 4 (6) of the same Constitution makes it clear that it is the state Houses of Assembly that have powers to make laws for the state. For the avoidance of any doubt whatsoever the section states that "the legislative powers of a state of the federation shall be vested in the House of Assembly of the state." The executive governors who are hiding under their membership of the council of states to kowtow to the presidency on subverting the constitution are only embarking on a voyage of conspiratorial illegality. They and the presidency have no powers to make laws in respect of the local government councils.

Now, if the president and the Federal Government do not have power to make laws on local government, why set up a committee on local government reforms? It is either the president so desperately requires effective diversion of public focus on the glaring non-performance of his administration or he is under pressure to reward his cronies for his "re-election" by appointing them into the illegal committee, since ministerial and board appointments are not limitless anyway! Whatever may be the case, the committee is an unnecessary and unconstitutional drain on the resources of the country. It makes nonsense of the claims that this government is not interested in doing business as usual, whatever that means.

The argument for setting up the committee is at once dishonest and self-indicting. It is dishonest because, although the local government councils stink and ought to be sanitised, they do not have the monopoly of corruption in relation to other levels of government. The Federal and state governments are equally as corrupt if not more so than the councils. The point is that no right-thinking Nigerian can suggest that the states or Federal Government be scrapped on account of corruption. Since we are all agreed that corruption is a comprehensive cancer, why must we approach it piecemeal? And if we may ask why must it be the kettle that must lead the crusade to clean the pot? Would it not have been better for the Federal Government to institute a probe of the COJA awards that remains an open festering sore of this administration? Until this administration can tell us who got the several millions of dollars to do turn- around maintenance of our comatose refineries, it has no moral right or justification to even talk about anti-corruption. It is as serious as that. One sincerely hopes that this administration knows how the average Nigerian rates it on anti-corruption.

To set up a committee on local government reforms on the ground that the councils are corrupt is a serious indictment of the administration. There are a surfeit of provisions in the Criminal and Penal Codes and also the so-called anti-corruption act on how to deal with corrupt officials at all levels. How many of the council officials have been tried by the government for corruption? Failure to bring the corrupt officials to justice as provided by law is a gross misconduct for which a more serious-minded and independent legislature ought to proceed to impeach the president under Section 143 of the Constitution. In any case, the punishment for corruption under our laws is not the scrapping of the tier in which corrupt officials are found but rather to send those officials to prison where they properly belong.

We are left with the inescapable conclusion that the reforms are to make it easy for the major political parties to win and control the resources of the councils. There is no doubt that it is much more difficult to rig elections at the council level. The idea is to frustrate the few good candidates that may want to run and create all sorts of obstacles in their way. Of course, there is also a lot of money in the councils. The loyal party henchmen and women now in charge of the councils illegally have been told where the money for 2007 elections is coming from. They know that it is from the council. This is why Nigerians must resist the ongoing illegality in the name of council reforms. And we must do so with all our might.

Bamidele Aturu vs. Nigeria, African Comm. Hum. & Peoples' Rights, Comm. No. 72/92 (February 21, 1992).

72/92 Bamidele Aturu vs. Nigeria

Communication about denial of right to education, dated February 21 1992.

Final Decision

1.         Author fails to exhaust local remedies. The Commission considers the application to be inadmissible under Article 56 (5) of the Charter.