Full text by Aborisade at 2020 International Day for elimination of sexual voilence

Full text of Human Rights Activist, Barrister Femi Aborisade, at International Lawyers Assisting Workers (ILAW) (Nigeria Chapter) workshop, organized by Nigeria Labour Congress (NLC) to commemorate International Day for the elimination of sexual violence in conflict, held, June 19, 2020

Comrade (Barrister) Aborisade

By allcitynews.ng

The International Lawyers Assisting Workers network (Nigeria Chapter) identifies with organized labour in Nigeria in calling on the Federal Government to speedily ratify the International Labour Organisation (ILO) Convention No. 190 on Violence and Harassment in the world of work as one of the most effective ways to mark this year’s International day for the elimination of sexual violence in conflict.

Nigeria would be making history if it promptly ratifies ILO Convention No. 190 . An adopted ILO Convention comes into force twelve months after ratification by two member States. Convention 190 was adopted in June 2019. In January this year, Uruguay became the first country to ratify and as at today, it remains the only country that has ratified the Convention. Ratification by Nigeria would make Nigeria the 2nd ratifying country and it would enable the Convention to come into force, twelve months after. Is Nigeria ready to make history and be counted among ILO member States that set the pace for establishing a framework for human progress and scoring victory for humanity on an international basis? This is the critical historical challenge that ratification or non-ratification of Convention 190 poses to the current Federal Government of Nigeria.

In the context of the combined provisions of Article 19(5) of the ILO Constitution and Section 254C(2) of the Constitution of the Federal Republic of Nigeria, ratification of an ILO Convention is an executive function, which excludes the prescribed legislative role of the National Assembly under Section 12(1) of the 1999 Constitution. By Article 19(5) of the ILO Constitution, an adopted Convention is to be brought “before the authority or authorities within whose competence the matter lies, for the enactment of legislation or other action”. In other words, depending on the legal framework in individual countries, ratification may involve domestic legislation or, alternatively, “other action” by the Executive arm of Government. Under Section 12(1) of the Constitution, international treaties require domestication before they can be acted upon or enforced.

However, Section 254C(2) of the Constitution has made an exception for ILO Conventions by excluding the requirement of prior enactment into law before they can be enforced, provided they are ratified by “other action” of the Executive.

The National Industrial Court of Nigeria (NICN) has given judicial approval to the provisions of Section 254C(2) of the Constitution, which has neither been challenged nor set aside on appeal. This was in a Judgment involving Aero Contractors Co. of Nigeria Limited v. NAAPE, delivered by His Lordship Hon. Justice B. B. Kanyip, PhD, on 4th February 2014, as he then was. His Lordship is now the President of the NICN.

In Aero Contractors Co. of Nigeria Limited v. National Association of Aircrafts Pilots and Engineers (NAAPE) & ors [2014] 42 NLLR (Pt. 133) 664 NIC (Suit No. NICN/LA/120/2013), the Court held that ratified Conventions do not require prior domestication under section 12(1), CFRN, 1999 before being enforced. In the words of the Court:

“The thing with section 12 of the 1999 Constitution, as amended, is that a treaty as such shall not have the force of law in Nigeria unless such treaty has been enacted into law by the National Assembly and that law has been ratified by a majority of all Houses of Assembly in the country.

“Now section 254C of the 1999 Constitution, as inserted by the Constitution (Third Alteration) Act 2010, deals with the jurisdiction of this Court. Its relevant provisions for present purposes are subsections (1)(f) and (h), and (2), which provide as follows:

….

” (2) Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified to labour, employment, workplace, industrial relations or matters connected therewith’.

…

“There are two ways of approaching the issue at hand. The first is the question whether the Constitution (Third Alteration) Act 2010, which inserted section 254C(1)(f) and (h) and especially (2) is not the domestication demanded by 12 of the 1999 Constitution itself. I think it is. The Constitution (Third Alteration) Act 2010 amended the 1999 Constitution. Before it was passed and assented to by the President of the country, it was sent to all the “Houses of Assembly in the Federation” and was ratified by majority of the Houses of Assembly, hence the alteration of the 1999 Constitution itself. This effectively means that the requirements of section 12 of the 1999 Constitution were and have been met when section 254C(1)(f) and (h) and (2) was enacted as per the Constitution (Third Alteration) Act 2010.

Even if the first approach were not to be the case, the second approach at treating the issue is that both subsections (1) and (2) of section 254C of the 1999 Constitution, as amended, commence with the word ‘Notwithstanding’. In subsection (1) it is “Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution…” and in subsection (2), it is ‘Notwithstanding anything to the contrary in this Constitution….’ Section 12 qualifies as both ‘anything contained in this Constitution’ in subsection (1) and ‘anything to the contrary in this Constitution’ of subsection (2). The use of the word ‘notwithstanding’ in any statutory instrument has been judicially considered by the Supreme Court. In Peter Obi v. INEC & ors [2007] 11 NWLR (Pt. 1046) 565 at 636 – 634 per Aderemi, JSC, the Supreme Court cited NDIC v. Okem Ltd and anor [2004] 10 NWLR (Pt. 880) 107 at 182/182 with approval where it held as follows –

“When the term ‘notwithstanding’ is used in a section of a statute it is meant to exclude an impinging or impending effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself.

In like manner the use of the word ‘notwithstanding’ in section 254C(1)(f) and (h) and (2) of the 1999 Constitution, as amended, is meant to exclude the impending effect of section 12 or any other section of the 1999 Constitution. It follows that as used in section 254C(1)(f) and (h) and (2) of the 1999 Constitution, as amended, no provision of the Constitution shall be capable of undermining the said section 254C(1)(f) and (h) and (2); and I so find and hold.

“So, whichever of the two approaches is adopted (or even if both approaches are adopted), I have no hesitation whatsoever in finding and holding that this Court has the jurisdiction and power to apply “any international convention, treaty or protocol of which Nigeria has ratified”; and ILO Conventions 87 and 98 and the ILO jurisprudence that goes with them can be so applied in view of their ratification by Nigeria.”

On account of the foregoing judicial pronouncement, ILAW (Nigeria) urges the Federal Government to ratify ILO Convention No. 190, by Executive action, without any further delay.

Benefits of ratification of

The Violence and Harassment Convention No.190 and the accompanied Recommendation No. 206 are the first international standards, which seek to protect the right of everyone to a world of work free from violence and harassment. The Convention recognizes that behaviours that subject the other person to violence and harassment constitute human rights violation issues. It thus provides a framework to prevent, remedy and eliminate violence and harassment in the world of work, including gender-based violence and harassment.

The Convention defines “violence and harassment” in the world of work as “…a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment”. [Article 1(1)(a)]. The Convention thus protects against abuses such as sexual harassment, rape, physical abuse, verbal abuse, bullying, mobbing, threats, stalking, and so on.

The Convention protects everyone who works, irrespective of gender (male or female) or contractual status, i.e. worker or employer:

“This Convention protects workers and other persons in the world of work … as well as persons working irrespective of their contractual status, persons in training, including interns and apprentices, workers whose employment has been terminated, volunteers, job seekers and job applicants, and individuals exercising the authority, duties or responsibilities of an employer” [Article 2(1)].

Indeed, the scope of coverage includes all sectors of the economy, private and public, formal or informal, urban and rural areas, in physical or virtual work settings, including work related internet communications.

Given the phenomenally rising rate of conflicts, crises, violence, multiple forms of socio-economic and political tensions, Boko Haram insurgency, abuses in Internally Displaced Persons (IDP) camps, wanton and arbitrary police killings, and particularly the alarming incidents of rape and killing of rape victims, the most auspicious time to ratify Convention 190 is now.