29092020 - Anger as labour leaders abort strike, mass protest

36 — Vanguard, TUESDAY, SEPTEMBER 29, 2020
Illegality of laws authorising AGF and
governors to detain Nigerian citizens(3)
The second part of this piece published
yesterday continues today with the illegality
of detaining citizens in corresctional
centres at the pleasures of governors
By FEMI FALANA
IF still detained in a mental hospital when
the sentence is about to be determined,
the officer in charge of the mental hospital
shall give such information as may be
necessary to determine whether the inmate
shall be under those laws as a person of
unsound mind till the date of the determination
of the sentence. Since a state governor is
not competent to exercise any power under the
Nigerian Correctional Service Act it is submitted
that the detention of any person of unsound
mind therein at his pleasure is illegal. Accordingly,
any order made by a trial court for the
indefinite detention of an inmate in a correctional
centre is ultra vires, illegal and
unconstitutional in every material
particular.
In the case of Hassan Hussein Yusuf v. The
Republic (Criminal Appeal No 59 of 2014) the
appellant was charged with an offence of
breaking into a building and committing a
felony contrary to section 306 (a) of the Penal
Code of Kenya. He was tried and convicted
by the Magistrate Court but at the time of sentencing
it dawned on the court that he was of
unsound mind and was therefore ordered to
be detained at the pleasure of the President of
Kenya. The convict appealed against his conviction
and sentence. In allowing the appeal
the High Court (per Kiarei J.) held that "It is
my opinion that keeping a sick person for an
indeterminate period in a prison is cruel, inhuman
and degrading treatment...The order
envisaged under section 167 (1) of the Criminal
Procedure Code is a punishment. Any punishment
that cannot be determined from the
onset is cruel, inhuman and degrading. I therefore
make a finding that this section is unconstitutional
to the extent it offends the said articles
of the Constitution."
His Lordship further stated that "A sick person's
place is at the hospital and not in prison.
I find section 167 of the Criminal Procedure
code discriminative to people with mental illness
for prescribing their detention to be in
prison instead of a health facility and for the
detention to be indeterminate. This offends articles
25 and 29 (f) of the Constitution". In consequence,
the Judge set aside order of detention
and directed that the appellant be escorted
to a medical facility with the capacity to reevaluate
his mental condition. It was the view
of the Judge that "If in the opinion of a psychiatrist
he will not pose any danger to the public
and himself he shall be set at liberty and prison
authorities shall ensure that he is facilitated to
his home. If the opinion is otherwise, he shall
be admitted for treatment until such a time it
will be safe to release him."
Even though a Nigerian court may order the
detention of a a convict in a correctional centre
every mentally challenged person must be
kept in a psychiatric
hospital for
treatment. Psychiatric
patients are
not to be detained
at the pleasure of
governors but kept
in mental hospital
and subject to periodic
review by
medical experts.
In Purohit and
FEMI FALANA, SAN Moore v. The
Gambia (2003) AHRLR 96 the complainants
who are mental health advocates, submitted
the communication on behalf of patients detained
at Campama, a psychiatric unit of the
Royal Victoria Hospital under the Lunatic Detention
Act of The Gambia. The Commission
considered the average length of detention,
which was variable according to mental illness
and family situation and found violations of
Article 6 of the African Charter with respect to
the denial of personal liberty and the freedom
from arbitrary detention. Based on lack of
review procedures the Commission concluded
that the LDA fell short of international norms
and urged the Government of The Gambia to
repeal the LDA and replace it with appropriate
legislation. Pending this legislative change the
Government was directed to create an expert
body to review all cases of persons detained
and to provide adequate and material care for
persons suffering due to mental illness.
Illegality of detaining children in correctional
centres
Under section 221 of the Child's Rights Act
no child shall be ordered to be-(a) imprisoned;
or (b) subjected to corporal punishment or
(c) subjected to the death penalty or, have the
death penalty recorded against him. Where a
child is found to have attempted to commit
treason, murder, robbery or manslaughter, or
wounded another person with intent to do
grievous harm, the Court may order the child
to be detained for such period as may be specified
in the order. Section 223.-(1) thereof provides
that where a child charged with an offence
is tried by a Court and the Court is satisfied
that the child actually committed the offence,
the Court shall take into consideration
the manner in which, under the provisions of
this Act, the case should be dealt with, namely,
by- dismissing the charge; or discharging the
child offender on his entering into a re-cognisance;
or committing the child offender by
means of a corrective order to the care of a
guardian and supervision of a relative or any
other fit person, or sending the child offender
by means of a corrective order to an approved
accommodation or approved institution in
place of detention provided under the Act.
The indeterminacy of the detention of children
was the issue in contention in the case of
A & Ors v Attorney-General (supra) where the
Appellants were tried for murder, convicted and
committed to prison at the pleasure of the
President. The Applicants challenged the constitutionality
of the provisions of the Criminal
Code which permit certain convicted persons
to be detained indefinitely at the pleasure of
Psychiatric
patients are not
to be detained
at the pleasure
of governors
but kept in
mental hospital
and subject to
periodic review
by medical
the President. In
his considered
judgment, Justice
John Mativo
declared the law
unconstitutional
when he said, “I
find that section 25
(2) of the Penal
Code is inconsistent
with the provisions
of Article 53
(1) (f) of the Constitution
which
provides that a
child has the right
not experts to be detained, except as a measure of last
resort, and when held, to be held for the shortest
appropriate period of time and separate from
adults and in conditions that take account of
the child’s sex and age.”
Rich people are not detained at the pleasure
of governors
The provisions of the ACJA and ACJLs which
permit the AGF and Governors to detain citizens
at pleasure are class biased as their application
is usually restricted to poor and vulnerable
people in all states of the Federation. In
fact, the lawyers who have justified the oppressive
laws have done so from undiluted ideological
perspectives. In a country where poor
citizens are routinely arrested and detained
with or without trial it is is rare for the police
and other security agencies to arrest and detain
rich people beyond 48 hours. Hence, leading
members of the legal fraternity are usually
assembled and paid handsomely to mount a
legal challenge against the detention and banishment
of prominent traditional rulers to some
remote areas of the country by State Governors
on grounds of intra class feud.
CONCLUSION
From the foregoing, it is indisputable that
some provisions of the ACJA and ACJLs have
clothed the AGF and state governors with powers
to detain citizens at their pleasure or discretion.
On the basis of such laws criminal
courts that try and convict children and people
of unsound mind commit them to the AGF
and state governors who may detain them indefinitely.
Having regards to the current human
rights law regime in Nigeria it is indubitably
clear that any law that allows a member
of the executive branch of the government to
subject citizens to detention of uncertain duration
is illegal and unconstitutional as it is
not justifiable in a democratic society.
Concluded
*Falana, SAN, human rights lawyer,
wrote from Lagos
Anger as labour leaders
abort strike, mass protest
Continues from Page 35
Abiodun Aremu,
lamented that by
agreeing to suspend the
strike, organized labour
has accepted
deregulation of the
downstream sector of the
petroleum industry.
He said: “It is a death
pill on workers and poor
masses. It is Nigeria for
sale to IMF and World
Bank. The point is that
JAF entirely rejects the
policy of privatization
and deregulation
because such policies
are essentially designed
to undermine the
interest of workers and
the poor masses.
“They are policies of
hardship and
underdevelopment
imposed on us by the
World Bank and
International Monetary
Fund, IMF. Experience
has shown that if Nigeria
enters into the trap of
deregulation, it will be
one economic crisis after
another.”
We’re not surprised -
CNPP
Reacting to the
development, the
Conference of Nigeria
Political Parties, CNPP,
said it was “not
disappointed that the
Nigerian labour unions
bowed to pressure at the
last minute as usual as
it has long become their
trademark.”
The CNPP in a
statement by its
Secretary General, Chief
Willy Ezugwu, said: “We
expected that this would
happen and that was
why the CNPP opted to
rally civil society
movements across the
country.
“We are monitoring the
situation and rejigging
our plans in view of the
now obvious reality that
ordinary citizens who
cannot travel to Abuja
are on their own.
“In the last five years,
the Nigerian Labour
Congress, NLC, and the
Trade Union Congress,
TUC, have remained
toothless bulldogs and
compromised arm of the
Federal Government.
“The suffering masses
who believed the labour
unions can now continue
to suffer, while all voices
are shut.
“Following the current
compromise and sell out,
we advise Nigerians
never to take labour
unions seriously until
there is a rebirth when
these current leaders of
the unions are gone.
“We join the Nigerian
people to clearly declare
that we have completely
lost confidence in the
current leaders of the
labour unions in Nigeria.
For them, getting
‘palliatives’ for the unions
is all they want, while the
masses can continue to
suffer.”
Labour sold out – Group
On its part, Resource
Centre for Human Rights
& Civic Education,
described the suspension
by labour as a sellout.
In a statement by its
Executive Director, Dr.
Ibrahim Zikirullahi, the
groupsaid: “We have
carefully studied the
excuses given by the
Nigeria Labour Congress,
NLC, and the Trade Union
Congress, TUC, to shelve
the general strike and
protests, which had been
slated to begin today
(yesterday).
“While we are not
advocating strike for the
fun of it, we make no
mistake about the fact that
the Nigerian people need
to send a strong message
to the government that its
strangulating policies are
unacceptable.
“It is apparent from the
details of the agreement
signed with the Federal
Government that Labour
has once again sold out
cheaply.
“It is shameful that the
leaders of the two labour
centres have now reduced
important and historic
struggles of the Nigerian
people for social and
economic justice to
opportunities to grab
appointments in various
government committees.
“It is yet another grand
betrayal by labour to have
allowed itself to be bought
over by government’s
empty promises to take
steps to ostensibly cushion
the effects of the harsh
policies it has unleashed on
citizens.
“As far as we can see,
government has not offered
any tangible road map to
end dependence on fuel
importation. Yet, labour
lamely accepted the
argument that price should
be hiked in addition to the
token of 133 buses to serve
as palliatives.
“Ironically, the important
question left unanswered is,
if 133 buses would really
cushion the multiplier
effects of the hike in terms
of galloping inflation,
higher cost of basic
necessities like food,
transport, healthcare,
school fees; cost of doing
business and increase in
the rate of unemployment
as a result of the
strangulating business
environment.
“It is apparent that they
went into negotiation with
government using the
workers as bargaining
power for their selfish
interests. And they,
therefore, ended up
inflicting further hardships
on the Nigerian people in
order to sit on the table with
oppressors in government.”
Ex-NHRC chairman
blasts Labour
Meanwhile, former
chairman of the National
Human Rights
Commission, NHRC, Prof
Chidi Odinkalu, has
accused the Nigeria
Labour Congress, NLC
and Trade Union Congress,
TUC of sabotage, in its last
minute move to suspend
the planned labour strike
which was to begin
yesterday.
E x p r e s s i n g
disappointment at the
actions of the labour
leaders yesterday, Prof
Odinkalu in a series of
tweets on his Twitter
handle, @ChidiOdinkalu,
said the meeting was done
in what he described as
willful orchestration.
Odinkalu, who is the
senior team manager of the
Africa Program of Open
Society Justice Initiative,
said: “The NLC/TUC
bunch didn’t even pretend
to negotiate. It was all done
with willful orchestration -
for the price of ‘review’ of
downstream sector without
benchmarks to end in rapt
that does not promise
action; suspension of
electricity tariff for two
weeks; and 133 buses.
“You cannot read this
communique without
marveling at the criminal
cynicism of the leadership
of Nigeria’s Organised
Labour. No, it’s not naivete;
it is organised, criminal
cynicism.”
Labour has long been
very patient with this govt.
– Esele, Ex-TUC President
Also, former TUC
President, Peter Esele, said
the current leadership of
the various labour unions
had been very patient with
the government.
He noted that there had
been a lot of infractions that
would have warranted the
industrial action of labour
over the years.
Speaking to Vanguard
yesterday, he said: “The
government should be
grateful because this
current labour leadership
has been so patient with it
because there are enough
things that would have led
to strikes in the country.
“So many things have
happened, ranging from
insecurity to devaluation of
the naira, to privatization,
to corruption and we are all
just quiet about all these
things. This would have
just been a starting point.”