ASUU vs FG: The strike, The agreement and matters arising

Members of the Academic Staff Union of Universities (ASUU) who participated in the last prolong industrial action against their employers may forfeit their pending and controversial half salaries and certain benefits if the provisions of Section 43 of the Commercial Disputes Act Cap T8, Nigerian Federation Laws, 2004, which regulates all unions, are followed to the letters, Chijioke Iremeka writes.

The frequent strike by the Academic Staff Union of Universities (ASUU) in Nigeria has become a major source of concern to a lot of Nigerians and a threat to the country’s educational system.

Though the recurring industrial action is perceived to have some elements of candor, it may sometimes be embarked upon for self and political considerations.
The Guardian learnt that certain highly placed individuals might have used the last eight-month strike to satisfy political interests. The Ministry of Education, politicians and ASUU are allegedly complicit one way or the other.

Though ASUU has suspended the strike as ordered by a court, there is still palpable fear that the industrial action may resurge due to non-payment of the university lecturers’ full salaries and the clandestine agenda of some politicians who are allegedly fuelling the crisis. It was the fear that prompted the Speaker of the House of Representatives, Femi Gbajabiamila, who intervened earlier during the suspended strike to appeal to ASUU members to exercise patience with the government over the half salary issue, assuring them of lasting solutions to their concerns. He said President Muhammadu Buhari was treating their issues. Gbajabiamila rationalised that government’s ‘no work, no pay policy’ was to discourage disruptive industrial actions.

“When ASUU called off their industrial action, it meant that academic activities could resume in our nation’s public universities and students could return to their academic pursuits after the prolonged interruption. This decision was rightly heralded nationwide as a correct decision,” he said.

Also, former National Commissioner of the Independent National Electoral Commission (INEC), Prof. Lai Olurode, cautioned ASUU against embarking on a fresh industrial action, stressing that such move would be lacking in merit, considering the shortness of time to the 2023 general elections
“My position is that ASUU should look beyond the current government for resolution of the impasse. We need to move forward. It should peep into the future, request social scientists among its members to randomly select a representative sample of potential electors from voter register and gauge its opinion on candidate likely to win the presidential election,” he said.

The Association of Nigeria Universities Alumni (ANUA) also lent its voice, appealing to the government to pay accrued salaries of ASUU members in the interest of peace and justice.

National President of the Association, Stephen Fasakin, and the secretary, Mohammed Sani, said the full payment would motivate the union members to cover grounds.
“ANUA has observed the turn of events in the Nigerian university education sector in the past few days, which saw the Federal Government paying members of ASUU half-salary. As critical stakeholders and parents, we are appalled by this decision.”

At the last count, ASUU had gone on strike for about 16 times between 1999 and 2022. A serious government or nation shouldn’t tolerate this record. It’s now the duty of all stakeholders in the education sector, including the Federal Government to find an enduring solution to this malfeasance.

The Guardian’s investigation revealed that some of the things that played out in the ASUU’s last industrial action were inconceivable and stupefying. Some stakeholders did not want the crisis to end. In fact, the prolonged strike became a means to an end for some politicians and other corrupt leaders.

It was gathered that a serving minister was working with one of the presidential aspirants in 2023 general elections to prolong the crisis to undermine the chances of another presidential aspirant, to pave way for his emergence as the party’s candidate for the election.

Thus a vast majority of Nigerians were made to question the credibility of a particular aspirant wanting to rule the country’s over 200 million population even when he couldn’t solve the eight-month ASUU crisis within his purview. This resulted to a serious backlash that forced the presidential aspirant to abandon his political ambition.

It was alleged that as soon as the aspirant quit the presidential race, a genuine move was made to end the ASUU strike, which was then considered to have achieved it purpose of discrediting the aspirant and his office for not being able to handle the crisis. It was learnt that after the aspirant backed down, the presidential aspirant that sponsored the prolonged strike sent emissaries to the minister to seek his support in the 2023 election.

It was not surprising that the Minister of Labour and Employment, Senator Chris Ngige, who featured on Channels Television’s ‘Politic Today,’ refused to answer a question by the anchor, Seun Okinbaloye, regarding his choice of candidate in the coming election. “I will make my choice at the ballot,” was Ngige’s response.

A lot of Nigerians considered it a noble course that ASUU asked for increased funding of education by the government through revatilisation funds, increase in salaries and allowances, reversing the payment platform and replacing it with an alternative payment system that takes care of their peculiar situations. Most importantly, the union asked for government’s implementation of an agreement reached with it (ASUU) in 2009 and subsequent modifications to the agreement. But it appears the government is unable to meet these demands owing to the dwindling economic situation in the country.

It was also alleged that ASUU leadership mandated its members to contribute 10 per cent of their monthly salaries for the struggle and fight against the government. The contribution is referred to as ‘struggle money.’ It was alleged that the leadership of ASUU did not want the strike to end so that the 10 percent contribution would continue.

A source in the Labour Ministry said if the strike was called off early, the contributions to ASUU would not be possible again, hence the need for the prolongation of the industrial action. “It was from contribution that the union raised the money with which it hired one of the country’s best human rights lawyer, Mr. Femi Falana, to defend it in the court, especially to appeal the decision of the lower court at the Appeal Court. But the three-man jurists asked him (Falana) to advise ASUU to obey the court judgment and call off the strike.”

The jurists also counseled Falana not to go against his age-long practice of respect for the Rule of Law and court judgment, informing him that such a job would dent his hard earned reputation as a human rights lawyer. This, The Guardian learnt, broke the backbone of ASUU’s resistance and made the union to call off the strike.

Prior to that, after 234 days (33 weeks) of strike, the Federal Government on October 5, 2022 announced the formation of two new academic unions – the National Association of Medical and Dental Academics (NAMDA) and the Congress of Nigerian University Academics (CONUA). ASUU eventually called off the 8-month strike on October 14, 2022.

Some observers found nothing wrong with ASUU collecting 10 percent of its members salaries to prosecute the strike, noting that it is the union’s constitutional right, like other associations, to collect levies and dues from its members as a source of its funding.

The Guardian learnt that the constitution and code of practice of the union as amended by the National Delegates Conference held at the University of Nigeria, Nsukka (UNN) from April 27 to 30, 2006, allows ASUU to collect levies, dues and certain percentage of the amount deductible from its members’ salaries for the advancement of the union’s cause, whether projects, research or strike.

Rule 3 of the Constitution states: (vi) “Every member shall pay his or her contribution to the Union regularly, endeavour to participate fully in the affairs of the Union and refrain from acts which may bring the Union into disrepute.”

Rule 17, titled ‘Union Fund’ reads:
• (v) “The main sources of funds of the Union shall be entrance fees, subscriptions, levies and proceeds of economic and social activities. Entrance fees from branches shall be determined, from time to time, by the Delegates Conference.
• (vi) “The funds of the Union shall be allocated as follows: Branch 40% and National Union 60%.
• “(vii) All fees, including deductions from salaries under the check-off system, shall in the first instance be paid to the local branch, which shall remit 60% of them to the National Union in accordance with this Constitution.
• “(viii) “Any Branch that fails, refuses or neglects to meet up its payment of check-off dues for a period of six consecutive months shall be suspended from the National Executive Council and National Delegates Conference meetings until the dues have been paid to the satisfaction of the National Executive Council.”

Before the ASUU strike was suspended, the Federal Government had earlier said it would not sign any other agreement it cannot implement. Minister of Education, Adamu Adamu revealed this government’s position in Abuja during a meeting of pro-chancellors and vice chancellors of federal universities held at the National University Commission (NUC). 

Adamu said President Muhammadu Buhari warned the government’s team involved in the negotiation with ASUU against signing any agreement that government would not be able to fulfill, as is the case with the 2009 pact that the Federal Government entered into with the university teachers.

To put a finger on ASUU’s real agitations for development of the country’s education sector, on December 14, 2006, the then Minister of Education, Dr. Obiageli Ezekwesili, on behalf of the Federal Government, inaugurated the FGN/ASUU re-negotiation committee comprising the FGN’s Re-negotiation Team led by the then Pro-Chancellor, University of Ibadan, Deacon Gamaliel Onosode and the ASUU Re-negotiation Team led by the then President of ASUU, Dr. Abdullahi Sule-Kano.

The committee met immediately after its inauguration for its first business session during which both teams re-affirmed the need to address the identified rot in the university system as evidenced in dilapidated infrastructure and poor condition of service for all categories of staff.

At the meeting, ASUU submitted a position paper titled ‘Proposals for the renegotiation of 2001 Agreement between the Federal Government of Nigeria/ Governments of states that own universities and the Academic Staff Union of Universities’ which reflected the views of ASUU on various issues in the 2001 FGN/ASUU Agreement.

On January 23, 2007, the Federal Government’s renegotiation started at the NUC, Abuja. At the meeting, the government’s team also presented a position paper titled ‘Government Negotiating Team’s Position for 2006 Negotiation With ASUU’ which was a response to ASUU’s demands. Unfortunately, at the time the nation started rejoicing that peace had finally returned to the universities, the re-negotiation was suspended as a result of ASUU’s withdrawal in January 2008 over its stand on the sacking of 49 lecturers at the University of Ilorin tagged ‘Ilorin 49’ and did not resume until August 25, 2008.

Sequel to this, the ASUU embarked on a one-week warning strike to press home its demand for the reinstatement of the 49 colleagues who were sacked from the University of Ilorin for engaging in union activities in 2001.

The term of reference of the committee was to re-negotiate the 2001 FGN/ASUU Agreement and enter into a workable agreement. In the course of discussion, the committee agreed that the essence of the renegotiation was to reverse the decay in the university system to reposition it for greater responsibilities in the interest of national development. The negotiation was also to reverse the brain drain, not only by enhancing the remuneration of academic staff, but also by disengaging them from the encumbrances of a unified civil service structure; restore Nigerian universities through immediate, massive and sustained financial intervention to ensure genuine university autonomy and academic freedom.

Eventually, the agreement came into force in 2009 when both parties agreed on funding for revitalisation of public universities, Earned Academic Allowance (EAA)/ Earned Allowance (EA), salary shortfall, state universities, visitation panels, re-constitution of the 2009 FGN/ASUU Re-negotiation Committee, University Transparency and Accountability Solution (UTAS) and the withheld salaries and non-remittances of check-off dues.

ASUU alleged that since 2009 when this agreement was reached, the government hasn’t done what they agreed upon, but the Minister of Labour said that the government had fulfilled part of the pact and that the dwindling revenue had affected non-implementation of others.

The parties entered into another negotiation in 2022. According to a memorandum of action reached at the conciliation meeting held in December 22, 2020 in Abuja, both parties agreed to work together to end the rot in the country’s educational system. It was there that it dawned on ASUU that serious politicking had entered the stage. The union alleged that the government was not serious with the agitation to end the rot in the university system, causing series of failed negotiations. The situation prompted the strike of February 14, 2022.

Speaking on the reason ASUU declared strike, the union’s President, Prof. Emmanuel Osodeke listed government’s failure to implement the MoU and Memorandum of Action (MoA) signed with the union, the government’s poor commitment to the payment of the EAA, continued use of the Integrated Personnel Payroll Information System and refusal to adopt UTAS, and proliferation of universities in the country.

ASUU also accused the Joint Admission and Matriculation Board (JAMB) of encroaching on the statutory roles of the Senates of universities over admission of candidates by the institutions. The union also frowned on the recent appointment of the Minister of Communications and Digital Economy, Isa Ibrahim, as a professor at the Federal University Technology, Owerri (FUTO) and threatened to sanction all those that took part in the processes leading to what it described as illegal appointment.

On the IPPIS, the union, in its communiqué, said: “The imposition of this grotesque platform challenged our union to develop an alternative system to IPPIS – the UTAS. This locally developed and cost-effective alternative payment platform has the distinct capacity to check corruption and preserve the hard-earned autonomy of Nigerian universities for the good of the country. Regrettably, FGN is still foot-dragging over its adoption, contrary to an earlier agreement with our union, thereby allowing the financial chaos heralded by IPPIS to continue.”

On the EAA, ASUU said the Federal Government promised to mainstream it into the annual federal budget in the various memoranda signed with ASUU and it recently released N221 billion for payment of part of the allowances. “However, many years of unpaid entitlements are outstanding, serving as triggers for industrial crisis in our universities.”

The union condemned what it termed continued delay in the release of the white papers on the reports of the visitation panels to the universities.
“We call for immediate release of the White Papers to address numerous lapses in the administration of Nigeria’s federal universities. The patience of our members has been tasked beyond tolerable limits. The greatest asset of any nation is its human capital. Any nation that pays lip service to education as we currently witness in Nigeria will only grow in age and never experience genuine development.”
Counter Claim

But Ngige claims that the government had done a number of things that were agreed upon, noting that the dwindling economy is the reason others have not been done.
According to the memorandum of action reached at the conciliation meeting between the representatives of the Federal Government and leadership of ASUU in December 22, 2020, FG reaffirmed its commitment to implementing the Needs Assessment Report, which made provision for the N1.3trilion documented in the MoU of 2013.

The N1.3trilion is divided into annual trenches of N200 billion in 2013 and N220 billion each year from 2014 to 2018.

The memorandum was signed in December 23, 2020 by the ASUU president, Biodun Ogunyemi; Permanent Secretary, Federal Ministry of Education (FMoE), Sonny Echono; Permanent Secretary, Federal Ministry of Finance, Budget and National Planning (FMFB&P), Aliyu Ahmed and the Permanent Secretary, Federal Ministry of Labour and Employment (FML&E), Dr. Yerima P. Tarfa.

In the document made available to The Guardian, apart from the N200 billion allegedly released in 2014 and additional N20 billion in 2019 as a show of FG’s commitment to the MoU of 2013, the government has not released any other tranche since then.
Ngige said the Munzali Committee was inaugurated as was agreed upon but its recommendation and requests were rejected by ASUU and Federal Ministry of Education.
The Guardian learnt that no fewer than three committees were set up within the period of two years to look into the lingering crisis in the university system. The period under review is 2021 and 2022.

In 2020, ASUU embarked on a nine-month strike that was called off in December, prompting the inauguration of a Federal Government Committee led by Prof. Munzali Jubril. In 2021, the Munzali Committee, working with ASUU, came up with recommendations in a draft agreement. ASUU was given a timeline on how to get the government to sign the agreement but the timeline was not kept.

During the strike in March 2022, the Federal Government inaugurated the Nimi Briggs Committee to renegotiate the renegotiated agreement. ASUU entered into the renegotiation. On June 16, 2022, the Nimi Briggs Committee submitted a draft agreement that was a product of collective bargaining to the government. The Minister of Education, Adamu said the government discarded the Nimi-Briggs committee due to lack of adequate resources. On September 6, 2022, the government set up another committee chaired by Adamu himself.

Ngige accused ASUU leadership of not understanding the import of Collective Bargain Agreement (CBA) negotiation, saying that he would have failed in his duties if he didn’t refer the matter to the National Industrial Court of Nigeria (NICN) after seven months of protracted discussions and negotiations with the union failed. He said ASUU was at the stage of CBA negotiation with their employers, the Federal Ministry of Education, when they embarked on strike.

“We have to counsel our brothers on negotiation. No negotiation is forced. You cannot say it is either you give me 200 per cent or I will continue my strike. There are laws guiding strikes. There are the International Labour Organisation (ILO) principles on the right to go on strike. Nobody can take it away. There are things that follow it when you embark on strike as a worker and they are enshrined in the laws of our land. It is written in Trade Dispute Act. The ILO principles of strike talk about the right of a worker to withdraw services. There is also the right to picket. These are things that are done,” the minister explained.

Ngige said that he conciliated the dispute twice, first on February 22, one week after the commencement of the strike and some agreements were reached, and he brought everybody back on March 1 for another conciliation.

According to him, the only thing left is going back to the Federal Ministry of Education for the renegotiation of the 2013 agreement, the 2009 agreement has been renegotiated in 2013/2014 with the administration of former President Goodluck Jonathan.
“It is an anathema to use 2009 agreement. What is left is the renegotiation of their conditions of service, which is their right. It should be done but they are negotiating it under the principle of offer and acceptance and it broke down irretrievably there at the Federal Ministry of Education.
“That kick-started Section 17 of the Trade Dispute Act whereby the Minister of Labour and Employment, whoever it is, if you don’t transmit according to the dictates of Section 17, TDA, 2004, Laws of the Federation of Nigeria, you would have failed in your function. Therefore, I had to transmit.”

Recall that ASUU commenced the nationwide strike in February 14, 2022, and the Labour Minister took the matter to the Industrial Court in accordance with the provision of the Trade Disputes Act Cap. T8 and Trade Disputes (Essential Services) Act Cap. T9, which permit the Minister to report such dispute to court after all conciliatory moves had failed.

The Chapter T8 of the Trade Dispute Act, Part 1, titled ‘An Act to make provisions for the settlement of trade disputes and other matters ancillary thereto’, Section 6(1) says: “If within seven days of the date on which a mediator is appointed in accordance with Section 4(2) of this Act, the dispute is not settled, the dispute shall be reported to the Minster by or on behalf of either of the parties within three days of the end of the seven days.”

Section 9 (1) of the Act, titled ‘Reference of dispute to arbitration tribunal if conciliation fails’, says: “Within fourteen days of the receipt by him of a report under Section 6 of this Act, the Minister shall refer the dispute for settlement to the Industrial Arbitration Panel established under this section.”

On the direct reference to National Industrial Court in certain special cases, Section 17 says: “If in a case of any trade dispute of which he (the Minister) has received a report under Section 6 of this Act and it appears to the Minister that (a) the dispute is one to which workers employed in any essential service are a party; or (b) that in the circumstance of the case, reference of the dispute to an arbitration tribunal would not be appropriate, then within seven days of receipt by him of such report under Section 8(5) of this Act, the Minster shall refer the dispute directly to the National Industrial Court.”

The law also states: “An employer shall not declare or take part in a lock-out and a worker shall not take part in a strike in connection with any trade dispute (a) where the procedure specified in Section 4 or 6 of this Act has been complied with in relation to the dispute; or a conciliator has been appointed under section 8 of the Act for the purpose of effecting a settlement of dispute; or effecting a settlement of disputes.”

The Principal Partner, Lawrence Ndukwe and Co., Emeka Ndukwe noted that going by the provision of this Act, it does not say or imply that ASUU members should be short-paid, rather the Act says “Anybody who contravenes subsection 1 of this section shall be guilty of an offence and be liable on conviction (a) in a case of individual, to a fine of N100 or imprisonment for a term of six months (b) in case of body corporate, to a fine of N1, 000.”

He, however, stated that in the Commercial Disputes Act Cap T8, Nigerian Federation Laws, 2004, which regulates all unions, including ASUU, Section 43 makes a special provision regarding payment of wages during strikes and lockouts.

“ (1) Notwithstanding anything contained in this Law or in any other law – (a) when a worker takes part in a strike, he shall not be entitled to any salary or other remuneration for the period of the strike, and the said period shall not count for the effects of computing the period of continuous employment and all rights dependent on the continuity of employment will be affected accordingly.”

In his submission, human rights lawyer, Falana said: “Those who are berating ASUU for alleged recalcitrance should advise the Federal Government to accord priorities to the funding of tertiary education. After all, following the directive of the Federal Government, the Central Bank of Nigeria has just released $235 million to foreign airlines to facilitate foreign travels by a few privileged citizens. And whereas the Federal Government budgeted the sum of N443 billion for the so-called fuel subsidy in the 2022 Appropriation Act, the fund has been increased to N4 trillion via a Supplementary Appropriation Bill approved by members of both chambers of the National Assembly.

“It is interesting to note that the details of the humongous sum were not scrutinised by the federal legislators. As if that was not enough, the Minister of Finance, Mrs. Zainab Ahmed, has disclosed that fuel subsidy will gulp N6.5 trillion this year alone. And very soon, the National Assembly will approve another supplementary budget of N2.5 trillion for the monumental fraud. But when it comes to funding tertiary education, the Federal Government is said to be broke!

“Instead of embracing the fascist option of proscribing ASUU, the Federal Government should commit itself to the faithful implementation of collective agreements reached with ASUU, which are enforceable by virtue of the relevant provisions of the Trade Disputes Act.”