By utopian standards, there would be no labour movements globally. Because, industrial harmony, full-employment, inflation-linked wage/pensions enhancements and guaranteed upward minimum-wage-reviews would be normative.

Right? Wrong! Since, within the dystopian reality of human interactions, conflicts, debates, skirmishes and strikes are, in variable quanta, part-and-parcel of the divergent facets of existence.

Labour relations between employers and employees, therefore constitute a philosophical divergence because although they have a symbiotic relationship, it is one fundamentally underpinned by conflicting objectives. At its granularity, their symbiotic nexus is established by the proposition that a reasonable employer seeks competent, diligent, dynamic, skilled and well-motivated workers and offers a wage which meets the specific requirements of each role within an organisation.

Correspondingly, a reasonable employee, offers commitment, experiential and/or intellectual knowhow, labour, skillsets in return for an agreed wage. Evidently therefore, the relationship between an employer and employee is contractually determined; reinforced by the essential ingredients of an offer, acceptance, consideration, the intention to create legal relations, detachment from duress and undue influence etc. That expounded philosophy is the essence of employer and employee relationships.

However, it is not a contractually linear process by any means because that dynamic relationship subsists within the wider spectrum of volatile socio-economic circumstances; contested economic, ideological, strategic and political objectives at national and sub-national level; on one hand; and, on the other, sharp practices by unscrupulous employers; sabotage by disgruntled employees; illegal acts by either side et al.

Thus, in dystopic circumstances, where relations between employers and employees have irretrievably broken brown, the latter, through their labour unions, are empowered by statute, to withdraw their labour; colloquially described as “strike actions” or “strikes.”

What then is a strike? Section 48 (1) of the Trade Disputes Act (TDA) 2004, defines a strike as the: cessation of work by a body of persons employed and acting in combination, or under a concerted refusal, or refusal under a common understanding of any number of persons employed to continue to work for an employer in consequence of a dispute done as a means of compelling their employer or any person or body of persons employed to accept, or not accept, terms of employment and physical conditions of work.

The phrase “cessation of work,” includes deliberately working at less than usual speed or with less than usual efficiency; whilst refusal to continue to work, encompasses a refusal to work at usual speed or with usual efficiency.

Given the provenance established via section 8 (1) (a) of the UN International Covenant on Social, Economic and Cultural Rights 1966; State Parties, like Nigeria, undertake to ensure inter alia: the right of everyone to form and join the trade union of his choice subject to the rules of the organisation concerned, for the promotion of his and protection of his economic and social interests.

This Covenant is transposed in section 40 of Nigeria’s 1999 Constitution (as amended), and stipulates that every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any trade union or other association for the protection of his interests. The aforementioned Covenant, via s.8 (1)(d), further establishes that State parties, undertake to ensure the right to strike, provided it is exercised in conformity with local laws within any particular country.

Now then, section 18 of the TDA stipulates that (1) “An employer shall not declare or take part in a lock- out and a worker shall not take part in a strike in a lock-out and a worker shall not take part in a strike connection with any trade dispute where: (a) The procedure specified in section 4 or 6 of this Act has not been complied with in relation to the dispute; (b) A conciliator has been appointed under section 8 of this Act for the purpose of effecting a settlement of dispute; (c) or The dispute has been referred for settlement to the Industrial Arbitration Panel under section 9 of this Act; (d) or An award by an arbitral tribunal has become binding under section 13 ( 3) of this Act; or (e) The dispute has subsequently been referred to the National Industrial Court under section 13 ( 3) of this Act; (f) or The National Industrial Court has issued an award and on the reference.’’

A logical inference from s.18 TDA is the prohibition of the right to strike, subject to the tediously prescriptive provisions contained with paragraphs (a) through (f) therein. However, that logical deduction, is upended by the provisions of section 34 (1) (c) of the Nigerian Constitution, the grundnorm, supra, which establishes that “every individual is entitled to respect of the dignity of his person, and accordingly no person shall be required to perform forced or compulsory labour.”

In the seminal collective bargaining case, Crofter Handwoven Tweed Co Ltd v Veitch [1942] A.C.435, Lord Wright affirmed that “when the rights of labour are concerned, the rights of the employer are conditioned by the rights of the men to give or withhold their services. The right of the workman to strike is an essential element in the principle of collective bargaining” Plainly therefore, there is indeed a right to strike under common law provenance and Nigerian jurisprudence. Nevertheless, strike action is a last resort: Union Bank Plc v Edet [1993] 4NWLR 287.

The foregoing therefore speaks to the ongoing indefinite national strike by the Nigeria Labour Congress (NLC) and Trade Union Congress (TUC) announced on May 31, 2024 owing to cost-of-living crisis, energy, food and gasoline hyperinflation, ditto, unmet demand for an increase of the minimum wage from N30,000 to N494,000, an increase of 1546 per cent. Critical national armature like the national grid and public hospitals were collapsed; likewise, banks, educational institutions, international/domestic airports.

In short, the country of over 220 million people was brought to a shuddering halt with near total paralysis of economic activities which the Federal Government denounced as “treasonable.” The strike has been temporarily suspended to afford both sides yet another opportunity for conciliation on a substantial increase of the minimum wage.

The intensity and impact of the national strike, begs several pertinent questions. First, is it legal? Second, can there ever be a justification for shutting down the progressively epileptic national grid, which nevertheless, is relied upon by tens of millions of Nigerians daily? Third, what is the rationale for shutting down accident and emergency, intensive care units, urgent maternity and vitally important hospital care?

Fourth, what proportion of Nigerian workers are employed in the public sector and is the N494,000 demanded by the unions reasonable given Nigeria’s dire financial circumstances? What are the ramifications of the government’s accession to the unions’ demands on the private sector and genuine concerns over job losses?

Whilst these posers must rightly engage the attention of all well-meaning stakeholders in the country’s socio-economic development, some fundamentals can be established. Relying upon common law and Nigeria’s jurisprudence, and especially constitutional supremacy section1 (1) 1999 Constitution, and section 34 (1)(c), therein, there is an argument in favour of the strike’s legality.

Objectively and reasonably considered, there is no justification for shutting down the national grid and essential hospital services, upon which tens of millions rely daily. The former is vital in strategic, operational, kinetic and non-kinetic military operations to safeguard Nigerians, a country besieged by rampant extremist abductions and terrorism.

Likewise, it is pivotal in safeguarding the country’s cybersecurity armature from highly sophisticated on-shore and off-shore malware, ransomware and phishing attacks. The latter defies any rational exculpation insofar as the shutdown of hospital services will, of necessity, adversely impact the critically ill, accident and emergency services, maternity and neonatal care in a country where infant mortality rate averaged 55 deaths per 1000 from 2020 through 2023; contrasted to 32 deaths per 1000 in Ghana, within the same period (Macrotrends).

According to the NBS, in Q3 2023, “87.3 per cent of employed Nigerians were primarily self-employed with the remaining 12.7 per centbeing primarily engaged as employees.” Mathematically therefore, the private sector employs approximately seven times as many people as traditional employees in the public sector! On the evidence-based statistical logic, a person cannot be concurrently be self-employed and in public sector employment.

In conclusion, it is recommended that the Federal Government and the labour unions, proactively negotiate in the optimal interests of all Nigerians.

For government, this implies ensuring affordability, equity, consistently demonstrable fiscal prudence, eliminating all manifestations of profligacy, streamlining MDAs duplicating functions in the negotiations; with a resolute focus on actualising socio-economic growth, plus, the overriding constitutional imperative of safeguarding the security and well-being of the Nigerian people.

Ojumu is the Principal Partner at Balliol Myers LP, a firm of legal practitioners and strategy consultants in Lagos, Nigeria, and the author of The Dynamic Intersections of Economics, Foreign Relations, Jurisprudence and National Development.