Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 300, Noviembre 1995

1. 245. The Committee already examined the substance of this case at its meeting in November 1994 when it presented an interim report to the Governing Body (see 295th Report, paras. 567-614).
2. 246. The Government transmitted its reply to the information requested by the Committee in a communication dated June 1995.
3. 247. Nigeria has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 248. At its meeting in November 1994, the Committee noted with concern that the allegations in the case pertained to the dissolution of the trade union executives of three trade union organizations (the NLC, NUPENG and PENGASSAN) and their replacement with government-appointed administrators, as well as reported arrests of certain officials and members of NUPENG and PENGASSAN, in violation of Convention No. 87 and the principles of freedom of association.
2. 249. On that occasion the Committee had, in particular, requested the following information from the Government (see 295th Report of the Committee):
   • - further information concerning the unionists arrested in this case and the charges, if any, brought against them and, in particular, any observations concerning the alleged arrests of Mr. F.A. Addo, Third Vice-President of PENGASSAN and Port Harcourt Zonal Chairman, Mr. F.A. Aidelomon, Chairman of the Pipeline and Products Marketing Company branch of PENGASSAN and Mr. Elregha, PENGASSAN union branch chairman (see 295th Report, paras. 607 and 614(d)).
3. 250. Concluding that the removal of the national executive council members of the NLC, NUPENG and PENGASSAN from office by government authorities was a serious infringement of the free exercise of trade union rights, the Committee urged the Government to repeal immediately Decrees Nos. 9 and 10 which provide for the dissolution of their executives, their replacement by government-appointed administrators and indemnity and exclusion from any court proceedings challenging the Decrees, and to allow elected officials to exercise their trade union functions once again (295th Report, paras. 605 and 614(a)).
4. 251. The Government was also requested to take the necessary measures to restore access to their respective trade union premises and bank accounts to the executive councils of the NLC, NUPENG and PENGASSAN and to withdraw the suspension of their check-off facilities and to keep the Committee informed of any measures taken in this respect (see 295th Report, paras 606 and 614(c)).
5. 252. As the Government had not replied to the allegations concerning the reported dismissals of striking workers in the oil industry by the Minister of Labour, the Committee urged the Government to take measures to establish an impartial inquiry with a view to ascertaining the oil workers who were dismissed for exercising their right to strike and to ensure that they were reinstated in their posts. The Government was requested to keep the Committee informed of the action taken in this regard (see 295th Report, paras. 608 and 614(e)).
6. 253. Finally, the Committee recalled the importance it attached to the general principle of non-interference by government authorities in the internal affairs of trade unions and requested the Government to ensure that the preparation of elections and any eventual constitutional review were carried out by the members of the NLC without any government interference. Furthermore, the Committee trusted that the disqualification of any union members from the elections would be limited to those who have actually been convicted of a criminal offence which, by its nature, is prejudicial to the performance of trade union duties and indicated that, if irregularities had indeed appeared in the annual statements or were reported by members of the NLC, the audit should be undertaken by an independent and qualified person (see 295th Report, paras. 613 and 614(f) and (g)).

B. New reply of the Government

1. 254. In its communication of June 1995, the Government reiterates a number of the main points put forward in its initial reply, emphasizing that the strike was of a political nature and that government intervention was necessary for the protection of public security. In particular, the Government recalls that the strike was not directed against the policies of the direct employers in the oil industry, but rather was directed at government political policy. Therefore, the management in the oil industry could not negotiate or bargain with the unions. Furthermore, the Government asserts that preliminary investigations have established a prima facie case of fraud in respect of the funds provided to the Nigerian Labour Congress by the Government.
2. 255. In reply to the specific recommendations made by the Committee, the Government states that the detention of the persons named, the promulgation of Decrees Nos. 9 and 10 and the subsequent dissolution of the executives of the NLC, NUPENG and PENGASSAN are purely a security exercise. These actions conform with the procedure of the application of the doctrine of necessity, security and political expediencies. It insists that it will be unfair, and out of place, to expect any government to divulge security information. The Government adds that the release of the persons so detained, the repeal of Decrees Nos. 9 and 10 and the election of new executives are all security matters and can only be reviewed if the security situation improves. Furthermore, the Government states that election exercises, in PENGASSAN and NUPENG, at the branch levels have just been completed. The election for the national executive body is about to commence. According to the Government, the Dissolution Decrees Nos. 9 and 10 of 1994 are of a transitory nature and were necessary to guarantee the maintenance of law and order at a time of national emergency engendered by the political strike; they are not meant to be a permanent feature of the country's industrial relations system. Nevertheless, the Government indicates that the repeal of these Decrees can only be reviewed if the security situation improves.
3. 256. The Government asserts that it is working harmoniously with the trade union towards the re-establishment of democratic structures in the affected unions and that, at the request of the unions themselves, committees have been set up (composed mainly of the union leaders and nominated by the union members) to run the NLC and work out the modalities of returning the unions to an elected leadership.
4. 257. As concerns the sealing off of union headquarters, the Government now indicates that, with the return to normalcy, law enforcement agents have been withdrawn and normal trade union activities have since resumed on the premises. As concerns the accounts of the national headquarters of the three unions, the Government states that these were frozen because of the need to protect workers' funds as well as to undertake proper auditing of the income and expenditure of the unions' accounts. The Government recalled, however, that it had granted the sum of 230 million naira to the NLC between 1991 and 1994. The Government further clarified that the operations of the government-appointed administrators were being funded by the federal Government. Furthermore, check-off dues were not suspended at the unit and branch levels of NUPENG and PENGASSAN, but were only suspended at the level of the national headquarters due to the dissolution of the national executive councils. As for the NLC, the affiliated unions have voluntarily suspended remittance of their check-off dues pending the restoration of complete normalcy.
5. 258. The Government explains the arrest of certain union officials and members stating that Mr. Kokori had used his unelected position in the National Executive Council of NUPENG to influence workers in the oil industry to embark on a partisan and illegal political strike action. Furthermore, his and his followers' refusal to submit themselves to a negotiated settlement of the crisis and their preference for wanton destruction of lives and property amounted, according to the Government, to a premeditated criminal act which seriously threatened the security of the nation. Therefore, the arrest of these persons must be seen as a last-resort security measure.
6. 259. As concerns the dismissal of striking oil workers, the Government states that all the oil workers have since resumed duty.
7. 260. The Government states that a draft Constitution was submitted to the Registrar of Trade Unions by the NLC Constitution Review Committee (set up after the dissolution of the executive council), but the Registrar has returned it for further action due to observed ambiguities and inconsistencies with existing laws.
8. 261. As concerns the auditing of the unions' accounts, this is being done by private firms of chartered accountants occasioned by the desire to uncover the extent to which the leadership of the unions has conformed with the principles of probity and accountability in the management of public funds under their care. The auditing of NLC accounts was being undertaken in particular with respect to the 50 million naira which the federal Government granted to it for the building of its secretariat at Abuja.
9. 262. In conclusion, the Government states that it is committed to the principle of freedom of association as enshrined in Convention No. 87 and that it will take all necessary steps to sustain that freedom within the limits of the existing labour laws. The degree of the country's compliance with this Convention can be assessed from the fact that 82 out of the 85 registered trade unions in the country are freely operating under these principles. The problems of the NLC, NUPENG and PENGASSAN are transient. The Government is aware that it is in the national interest, as well as that of the three unions, to restore full democratization to their activities as soon as possible.

C. The Committee's conclusions

1. 263. The Committee notes the information and observations provided by the Government. It notes, in particular, the Government's indication of its commitment with regard to freedom of association within the limits of the existing labour law. It also notes that, according to the Government, all oil workers have since resumed duty. The Committee nevertheless recalls that the membership of a State in the International Labour Organization carries with it the obligation to respect in national legislation freedom of association principles and the Conventions which the State has freely ratified.
2. 264. The Committee deeply regrets that the Government has not replied in detail to the requests it had made in its previous conclusions. While repeating in a general manner its earlier indication that Mr. Kokori had embarked upon political strike action, refused negotiation and caused damage to lives and property, the Government has not included in its reply the specific charges, if any, brought against the unionists arrested for participating in the strikes of July and August 1994, nor indicated whether they were still being detained or whether they had been sentenced. Given the information provided in this respect, the Committee can only conclude that Mr. Kokori, Mr. Addo, Mr. Aidelomon and Mr. Elregha were arrested for carrying out legitimate trade union activities. It therefore urges the Government to take the necessary measures to ensure the immediate release of any of these trade union officials or members who might still be detained and to keep it informed in this regard.
3. 265. Furthermore, the Committee urges the Government to refrain in the future from arresting trade unionists who have only been exercising their legitimate trade union rights.
4. 266. As concerns the Government's reiteration that the strike was of a political nature, the Committee would recall its earlier conclusions that a substantial part of the claims of the NLC, NUPENG and PENGASSAN were of a social and economic nature, even if they were not linked to a dispute with their direct employer and that the action was therefore a legitimate exercise of the right to strike.
5. 267. As concerns the allegations of fraud, the Committee notes that such allegations concern, in particular, funds which had been provided to the Nigerian Labour Congress by the Government. It notes with concern that the use of these funds is one reason given by the Government as justification for its interference in the functioning of the NLC, NUPENG and PENGASSAN through its appointment of a Sole Administrator with powers to, according to the terms of reference annexed to the Government's reply, take over the offices, assets and liabilities, to examine the accounts and determine the appropriateness of expenditures made, to examine the constitutions and bring them into conformity with labour laws and to organize elections for new officials. The Committee must recall in this regard that the right of workers to set up the organizations of their own choice and of the freedom of such organizations to draft their own constitutions and internal rules and organize their own management and activities presupposes financial independence. Such independence implies that workers' organizations should not be financed in such a way as to allow the public authorities to enjoy discretionary powers over them (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 344).
6. 268. The Committee deeply regrets that, despite its previous recommendations to do so, the Government has not taken any steps to repeal the Decrees providing for the dissolution of the national executive council members of the NLC, NUPENG and PENGASSAN and to allow elected officials to exercise their trade union functions once again. While noting the Government's indication that enforcement agents have been withdrawn from the unions' headquarters and normal trade union activities have been resumed on the premises, the Committee would recall that the Government had been requested to take the necessary measures to restore access to their respective premises, specifically to the executive councils of the NLC, NUPENG and PENGASSAN. Furthermore, while noting that check-off dues for NUPENG and PENGASSAN were only suspended at the level of the national headquarters due to the dissolution of the national executive councils, the Committee regrets that these check-off facilities have not been restored as requested in its previous examination of the case. The Committee therefore urges the Government to repeal immediately Decrees Nos. 9 and 10 and to allow independently elected officials to exercise their trade union functions once again, to restore to the executive councils of the NLC, NUPENG and PENGASSAN access to their respective trade union premises and bank accounts and to withdraw the suspension of their check-off facilities at the national level. The Government is requested to keep the Committee informed of the measures taken in this regard.
7. 269. In conclusion, the Committee deplores that, since its previous examination of the case, the Government has not taken any steps to restore trade union rights to the NLC, NUPENG and PENGASSAN as requested. The Committee notes with particular concern that the government-appointed Sole Administrator is still in control of the NLC, as can be seen by the minutes of the meetings of 17 October 1994 and 7 March 1995 held between the Administrator and the leaders of the 41 industrial unions annexed to the Government's reply. These minutes clearly show the unions' displeasure at the Government's constant intervention in labour matters and their concern in losing their independence due to the government "assistance" and the Government's persistent attempts to move the NLC's headquarters from Lagos to Abuja despite the fact that most of the NLC's affiliates are located in Lagos. Furthermore, it is indicated in the minutes of March 1995 that the presidency will give the date of the Special Delegates Conference after necessary clearance, whereas the unions wished to conduct the election on or before 31 March 1995. In this regard, it appears that "the Sole Administrator advised the unions not to take any action to undermine the government position and cautioned on the effect which is capable of creating nationwide industrial unrest".
8. 270. Given the information provided by the Government, and even if elections were organized at the branch level in NUPENG and PENGASSAN, the Committee cannot but conclude that interference by government authorities in the internal affairs of the NLC still continues, constituting a serious violation of the most basic principles of freedom of association. It deplores this fact and reaffirms its previous recommendation that the Government should ensure that the preparation of elections and any eventual constitutional review are carried out by the members of the NLC without any government interference. With regard to the placing of certain unions under control, the Committee must recall the importance it attaches to the principle that the public authorities should refrain from any interference which would restrict the right of workers' organizations to elect their representatives in full freedom and to organize their administration and activities (see Digest, para. 471). It, therefore, calls upon the Government to withdraw immediately the Sole Administrator appointed to "ensure the return of workers to work and the restoration of normalcy" (terms of reference 7.1) and allow the union members and their elected officials to exercise their trade union functions in full freedom.