LEGISLATED ‘PROFESSIONAL BODIES’ AND TRUE RESTRUCTURING OF NIGERIA – PART I

By Sam Eleanya

In the first week of February, 2018, President Muhammadu Buhari wrote the National Assembly pursuant to Section 58 (4) of the 1999 Constitution to formally communicate his denial of assent to three bills passed and tabled before him by the federal legislature. Bills affected and reasons expressed by the President for denying them assent were:

  1. Police Procurement Fund Establishment Bill 2017: “the lack of clarity regarding the disbursement of funds as well as constrainant issues regarding the powers of the National Assembly to appropriate funds allocated to the 36 State governments and 754 Local Governments)” which is ultra vires sections 80 – 82 and 120 – 122 of the 1999 Constitution.;
  2. Chartered Institute of Public Management of Nigeria Bill, 2017: “lack of clarity over the scope of the profession of ‘public management’ that this bill prohibits all persons who are not members of the institute from practising”.
  3. Nigerian Council for Social Works Establishments Bill 2017: “lack of clarity over the scope of the profession of ‘social works’ that this bill prohibits all persons who are not members of the institute from practising”.

 

Technically, the first bill was declined on ground of unconstitutionality – highlighting either the paucity of legal support that the National Assembly avails itself of despite the huge legal bill it allocates to just that annually or worse, the scant regard of that arm of government for the Constitution it is foresworn to uphold.

 

Instructively, the bill suffered from similar disabilities which the then Acting President, Yemi Osinbajo, referenced on 22 February, 2017 in refusing assent to four other bills passed by the National Assembly: the National Lottery Bill, 2016 (because of the existence of a pending legal challenge to the competence of the National Assembly to legislate on the subject matter); Dangerous Drugs Amendment Bill 2016, (for being inconsistent with the Principal Act); Agricultural Credit Guarantee Scheme Fund Amendment Bill, 2016 (due to concerns relating to prescribed mode of board composition and increment of uncollateralised loans from N5000 to N250,000); and Currency Conversion Freezing Amendment Bill, 2016 (due to concerns relating to prescribed modalities for the communication of asset forfeiture orders).

 

Yemi Osinbajo and Dino Melaye

Yemi Osinbajo                                                                                                        Dino Melaye

For a process that is constitutionally mandated to be rigorous and yet robust enough as to include relevant stakeholders in its development – especially implementing authorities (aka, the executive), it was therefore troubling to see the Legislature hiding, in the words of Senator Dino Menaye, under the nebulous doctrine of “separation of powers” to justify the passage of bills that brazenly disregarded -without resolving – ongoing judicial proceedings, or one that paid scant regard to Constitutionally imposed legislative restraints and/or accorded inadequate respect to the budgetary and administrative implications of proposed new laws. Even more troubling was the assertion by Melaye, that “the role of the executive is to carry out their fundamental objectives by signing ANYTHING that has [been] passed by this House” as doing otherwise, in his view, translated to the taking away of legislative functions from the Legislature.

 

Melaye was wrong in 2017 – and it seems that the failure to recognise that first error may have led the National Assemvly down the error route again. Although a public rebuke, all that the Constitutional right of withholding assent does is give the President an opportunity to prompt the Legislature to undertake a review of a passed bill, if back-channels fail, so as to improve a bill fiscally, administratively, legally or functionally – as a complement to an existing complex of other existing laws. Under the current Constitution, the President’s privilege to deny assent was not designed to be a veto since it can be over-ridden by two-third majority of both chambers of the National Assembly, pursuant to Section 58 (5) of the Constitution thereby preserving the doctrine of Separation of Powers.

 

From a development or policy front, the President’s refusal of assent to the other two 2018 bills – Nigerian Council for Social Works Establishments Bill 2017 and Nigerian Council for Social Works Establishments Bill 2017 is even more significant. On the surface, those bills looked very innocuous legally and administratively, appearing no more than as legislative instruments for setting up relatively independent bodies to advance standards and professionalism in the formal practice of two designated vocational segments of Nigeria. In fact, the current administration had already signed three substantively similar bills, in 2018 alone: Chartered Institute of Local Government and Public Administration Act, 2018, Chartered Institute of Project Managers of Nigeria (Establishment) Act, 2018, Legislative Houses (Powers and Privileges), 2018, National Institute of Legislative Studies (Amendment) Act, 2018. On the queue and waiting for auspicious time to be presented are even more of such bills already passed by both chambers of the National Assembly: Chartered Institute of Consumer Relationship Management Bill, 2015, Chartered Institute of Consumer Relationship Management Bill, Chartered Institute of Loan and Risk Management of Nigeria Bill, Chartered Institute of Human Capital Development of Nigeria (Est. Etc.) Bill, Chartered Institute of Project Management of Nigeria (Establishment) Bill, Environmental Managers Registration Council of Nigeria (Establishment) Bill, Chartered Institute of Export and Commodity Brokers of Nigeria Bill, The Chartered Institute Of Capital Market Registrars, Chartered Institute of Treasury Management (Est.etc) Bill, Chartered Institute of Financial Investment Analyst of Nigeria Bill.

 

Presidents of ICAN, NBA, NMA

President of ICAN, I.M Zakari                 President of NBA, A. B. Mahmoud     President of NMA, Mike Ogirimma

 

So, why did the President suddenly refuse, as usual, to append his signature with flourish, on those two bills? That’s easy to answer as the President gave his reasons. What, however should bother Nigerians is what the President (or his Advisors: who knows if he got some few new ones?) may not want to say yet? And what needs to be said now for the sake of Nigeria! It is this: those two bills represent a class of legal contraptions through which successive but naive, negligent, disconnected or bewitched Nigerian legislatures have lent themselves and their stewardship of legislative highgrounds to the balkanisation of Nigeria’s socio-economic sphere to the point the country’s default mode is greater informalisation as to its economy because of legal but artificial barriers to enterprise development, innovation, investments and research. While the voluble pitch that goes with those legislative masonry promises better ‘standards’, greater ‘professionalism’, diversification and ‘specialisation’, Nigeria’s near comatose state economically testifies ably to the falsity of those claims. Indeed, they have largely helped in promoting a disorderly and crises-prone socio-economic architecture contributing to the clogging up Nigeria’s judicial circuit while enriching a few gate-keepers at the expense of national development and widely dispersed socio-economic opportunities.

 

Again, despite the noble intentions of its framers, the Chartered Institute of Public Management of Nigeria Bill, 2017 and Nigerian Council for Social Works Establishments Bills 2017 substantively sought to continue what seems to have become a legislative trend in Nigeria – seeded during the last days of the Ibrahim Babangida dictatorship and re-commenced on the return of democracy in Nigeria during the dusk of the Olusegun Obasanjo Presidency (when it became obsessed with the third term misadventure). That trend is the legislative misuse of legal epithets like the ‘charter’ or ‘council’ or ‘institute’ or even ‘Boards’ to rig the economic space for the promoters of entities which properly properly in the Registered/Incorporated Trustees rung of the Corporate Affairs Commission voluntarily commissioned as independent night-soil-men eking out earthy value for Nigeria in chosen socio-economic fields. Many of them actually started out as independent nonprofits or registered trustees but found the legislative opportunity too attractive to resist and so their promoters, instead parlayed their access to the governmental platforms of Nigeria – especially its legislative beat – to become transfigured into federal government sealed authorities with exclusive levying and licensing powers over persons across Nigeria’s 37 federating units interested/invested in practising a key vocation in Nigeria.

 

Between 1960 and middle 80s, their combined presence seemed bearable as there were only a few of them. Today, even before the President rejected the last two, there were already about fifty of them in existence in Nigeria with combined exclusive authority over a such a large expanse of the nation’s socio-economic life, in the formal sector, as to be staggering, for good or for bad.

 

Operationally, these expanding pool of mostly ‘independent’ bodies (even if in terms of board composition, sometimes, government dominated) function as monopolies happily afforded government coercive cover and endorsement: as regulators, exclusive licensors, and enforcers (on government bill) of self-determined standards/rules. A significant proportion are even entitled to the establishment of their own disciplinary tribunals whose decisions cannot be challenged administratively except via prohibitively expensive and complicated appellate actions starting at the Court of Appeal or as a minimum – the Federal High Court. This arrangement ensures that many Nigerians just out to make a living for themselves are legally impaled to exit into the informal sector – underground – to the detriment of the nation’s tax coffers, Gross Domestic Product, employment numbers and intellectual property growth.

 

NICN: Proper but unacknowledged forum for appeals from Professional Tribunals?

Nigeria’s vast informal sector

 

At the beginning, it wasn’t always so. As already noted, a few decades back, only very few vocations were granted a degree of legislative recognition due to perceived benefits their regulated practice were deemed to harbour for Nigeria’s national development. Those few included the legal profession law (through the Legal Practitioners Act 1962 as amended on 16th May 1975) and medicine (through the Medical and Dental Practitioners Act, 28th June, 1988). Others got similar recognition due to the peculiar nature of the vocations they represent being ones deemed so sensitive or amenable to massive fraud if left within the ordinary rules of the market places – like insurance (Chartered Insurance Institute of Nigeria Act, 26th February, 1993), banking (Chartered Institute of Bankers of Nigeria Act, 11th April, 2007) and stock-broking (Chartered Institute of Stockbrokers Act, 2nd August, 1992). But like the proverbial slippery slope, other professions and vocations have over time come to perceive and then assail the legislative structuring of those few professional vocations as government endorsement that was discriminatory towards other vocations/professions:– a discrimination that could only be equalized by withdrawing such legislative recognitions altogether or by equity (pitched as the granting of similar legislative recognitions to other vocational groups able to ‘mobilize’ and come up with a framework ‘worthy’ of legislative imprimatur.)

 

While the ‘equity’ argument initially seemed attractive, with the benefit of hindsight, it was ill-conceived. Instead of thriving and robust economy made up of confidently criss-crossing professional segments, Nigeria is now grappling with the deployment of various policy measures and government resources to eke out a diversified economy based on real people involved in productive and entrepreneurial endeavours across the country. What was always the way to go: what could not never be substituted by legislating an artificial even if diversified professional segments into existence.

 

So, the question need to be asked: what is wrong with those bodies legally and functionally? And what need to be done?

 

LEGAL AND FUNCTIONAL ISSUES

Legislated professional bodies are by definition creatures of statutes – and so can rise and fall on the validity and efficacy of their enabling power. With over fifty, statutes currently in existence for various professional groups, they do have their difference yet it suffices to say that there are key provisions which bind them together and define them as a class. Like other statutes, it is always a useful inquiry to explore the constitutionality of those fundamental provisions and then, their functional usefulness.

 

CONSTITUTIONALITY OF LAWS ESTABLISHING PROFESSIONAL BODIES

Historically, statutory establishment of professional groups in Nigeria span both military and civilian dispensations. As already noted, while a few were established in the first Republic, quite a number were decreed into existence during the dusk of the Ibrahim Babangida military administration – hinting at some political patronage of sorts. Since 1999, successive legislators have passed the bulk of such establishment laws for professional bodies during election/transition seasons – than those passed during other periods.

 

Before the 1999 Constitution was inaugurated, the preceding Military administration ran more or less unitary governmental systems under which the Federal Government had a more or less limitless law making jurisdiction vis a vis the States. That is important because it was during this period that the general formula for drafting the enabling laws of most of the existing professional bodies became entrenched. For instance, all of them adopt a unitary framework with exclusive powers over the main objects and initiatives of the organisation located at the national level – leaving practically little for the State and Local Government levels except as subsequently delegated via a ‘Constitution’ which is nferior to the enabling legislation. In the main, all of them ensure that exclusive over registration, credentialing and discipline of members, licensing of corporate and individual stakeholders, levying and collection of levies/fees, development and enforcement of standards and control over continuing educational initiatives – are left with the national control hub.

 

With the return of the concept of the Supremacy of the Constitution – along with its cardinal pillars like federalism, the question of constitutionality of those provisions is one that, on close examination furnishes a lot for their promoters and sponsors to be genuinely concerned – even worried.

 

First, the powers of the National Assembly to legislate over professional bodies are chiefly situated under items 32 and 49 of the Exclusive Legislative List, Part I, Second Schedule of the Constitution of the 1999 Constitution. Those two provisions gave the Federal Government exclusive powers over “professional occupations as may be designated by the National Assembly” and “incorporation…of bodies corporate”. However, a careful scrutiny of the instruments made pursuant to those constitutional provisions – or those made by Military decrees – reveal that a lot more than “designation of professional occupations” and/or their “incorporation” were attempted and purportedly delivered. In operation, too many of the fifty plus enabling legislations substantively represent legislative effort by the Federal Government, alone, to appropriate and regulate choice economic segments of Nigeria by proxy: through entities designated by or beholden exclusively to it, to the detriments of the other federating units. In essence, while purporting to give effect to its ‘designating’ functions, the Federal Government seems to have repeatedly overreached into backroom control of concurrent powers shared with States and even local governments – powers which when exfoliated of technical jargons approximate to no more than rights of those sub-entities to participate in Nigeria’s socio-economic spaces (commerce, innovations, entrepreneurial efforts and general economic operations) – through the creation of all manner of quasi-regulatory bodies, aka professional bodies, which leverage Nigeria’s poor or blunt antitrust laws to flower and entrench themselves.

 

Some of those problematic provisions are found under certain headings like: “Offences and Penalties under the Act”, or “When Persons are deemed to Practice as ‘Member of that Profession’”, or “Appointments not to be held by Unregistered Person” or “Interpretation of that ‘Profession’”. As currently framed, those provisions often go well beyond the realm of ‘designation’ or ‘incorporation’ as allowed by the Constitution to the ordering of socio-economic operations at federal, State and private realms. For instance, Section 17(1) of the Advertising Practitioners’ (Registration, Etc) Act, (enacted in 1988 but amended in 2016) provides:

17.   (1)     Subject to the provisions of this Act, no person, not being registered in accordance with this Act, shall be entitled to hold any appointment in the public service of the Federation or of a State or in any public or private establishment, body or institution, if the holding of such appointment involves the performance by him in Nigeria of any act pertaining to the profession for gain.”

Section 16 of the National Institute of Marketing Act defines the exclusive club of a professional ‘marketer’ without membership of which everyone ‘marketing’ for gain becomes criminally liable thus:

(1)     Subject to subsection (2) of this section, a person shall be deemed to practice as a marketer if in consideration of remuneration received or to be received and whether by himself or in partnership with any other person he—

(a)     engages himself in the practice of marketing or holds himself out to the public as a marketer; or

(b)     renders professional service or assistance in, or about matters of principles or detail, relating to the practice of marketing; or

(c)     renders any other service which may, by regulations made by the Council in consultation with the Minister, be designated as service constituting practice as a marketer.

 

Replicated across fifty or more statutes establishing exclusive practice rights or employment realms over designated ‘professional vocations’, it is beyond question that even a modest attempt at enforcing any of those laws would have the effect of imposing burdens on State in the auditing of their labour force (publicly and privately) and in the criminalizing an outsized proportion of the population going about various vocations in good faith (oblivious to those statutes!) in each State.

 

Such enforcement drive would also render unemployable and/or illegally employed millions of citizens who are currently involved in or bidding to enter just those vocations at the State and local government levels – like advertising, secretarial functions, management duties, procurement, purchasing and supply, printing, accounting, insurance, computer operations, environmental health, chemists, personnel management, public analysis, medical rehabilitation therapy, dental therapy, etc – in government or private sectors. Considering that those are vocations that Nigerians, especially entrepreneurs learn inductively by apprenticeship or as part of on-the-job training to support everyday needs of their ventures in an environment where ease of doing business is still one of the highest in the whole world, it becomes easier to gauge the massive negative cost inherent in those legislations intended to advance ‘standards’.

 

Thus, a case of unconstitutionality can again be made against those professional bodies because by their stipulated objectives and powers, they overreach into the domain of concurrent powers belonging to the 37 Federating Units together – specifically their constitutionally given powers Items 17, 18, 19, 20, and 21 of the Concurrent List, Part II, Second Schedule to the Constitution.  They may well represent multiple legislative heists perpetrated against States which the federal legislature has for long been allowed to get away with by repeating certain clauses of doubtful legal foundation, in almost all the instruments setting up those ‘professional’ bodies. In the fundamental clauses of those instruments may well be domiciled the very definition of the federal legislature making laws that purport to place ‘binding’ obligations or exact mandatory commitments on State Government legislatively. At the very least, too many of them represent attempts to legislatively reduce the scope of actions available to States in their engagement of their responsibility of determining their preferred socio-economic policy priorities for the lifting of their people of poverty and the fostering of prosperity within their domains.

 

Again, considering that in many countries with more advance educational/training frameworks that enables specialisations still allow disparate regional entities to equivalent to States and Local Governments in Nigeria to participate in the space legislative reserved to federally accountable professional bodies, it beggars belief why Nigeria would go for the exact opposite. For a country looking to diversify economic activities so as to grow away from the penumbra of various developmental distress, it seems counter-productive to criminalize independent initiatives and to freeze up key economic spaces or hubs in artificially contrived segments as those instruments seem to have done.

 

It is arguably that subjecting many of those existing legislations made prior to 29 May, 1999 to the modifications mandated by Section 315 (1) and (2) of the Constitution could bring about such radical but positive outcomes that could help revitalize and positively restructure socio-economic operations at the State levels by releasing credentialing, licensing and other powers over key professional segments to them. So, would States invoking the inherent powers of Court under 315 (3) to declare invalid provisions of some of those enabling laws on the ground of inconsistency with the provisions of the Constitution. Who knows, if Lagos State may find itself able to run its own locally certified Law and Medical Schools with standards better than what is obtainable across the rest of the nation by asking the Courts to review the constitutionality of the relevant statutes vis a vis the powers of States in a constitutionally devised federation. States already have powers to establish tertiary institutions. The debilitating gap exist at the post-tertiary level – the domain bestrode by these professional groups who determine deployments in the organised public and private sectors through their monopoly of credentialing powers over diverse vocations – as well as their privileged but entrenched control over who may register a corporate entity to operate in a long list of entrepreneurial activities at the Corporate Affairs Commission of Nigeria.

 

OTHER CHALLENGES TO THE EXISTING REGIME

Based, as they were, on problematic foundations, it is fitting that as a class those enabling legislations harbour avoidable incongruities. First, is the existence of legislated opportunities for crisis or turf-fights due the emergence of ultra-specialised professional segments who have secured for themselves legislated exclusive domains that is difficult to tell apart from more traditional sister vocations equally empowered. While the notoriously long drawn out turf-war between the Institute of Chartered Accountants of Nigeria,  established by the Institute of Chartered Accountants of Nigeria ACT (no 15 of 1965) and the Chartered Institute of Taxation of Nigeria  established under the Chartered Institute of Taxation of Nigeria Act (No76 of 1992) over who controls the juicy taxation segment may be considered egregious case not likely to happen every other day, yet, there is no denying that there exists manifest opportunities for conflicts due to what may be in some cases impossible to define professional boundaries. For instance, there currently exist the Dental Technologists (Registration, Etc.) Act (establishing the Dental Technologists Registration Board of Nigeria), the Dental Therapists (Registration, Etc.) Act (establishing the Dental Technologists Registration Board of Nigeria) alongside the longstanding Medical and Dental Practitioners Act (establishing the Medical and Dental Council of Nigeria) – each with ‘exclusive’ domain to oversee. That’s just teeth alone.

 

ICAN and CITN

ICAN and CITN once engaged in a protracted turf war that placed enormous but unnecessary pressures on public institutions including the Judiciary

 

Beside those are the new generation of professional groups that bid for exclusive powers over domains for which exclusivity seems, for lack of a better word. inappropriate. How does one situate the exclusive territory of the professional groups envisaged by such passed but unsigned bills like the Chartered Institute of Consumer Relationship Management Bill, 2015, or the Chartered Institute of Loan and Risk Management of Nigeria Bill or the Chartered Institute of Human Capital Development of Nigeria (Est. Etc.) Bill or the Chartered Institute of Export and Commodity Brokers of Nigeria Bill. The effect of all those is, it is submitted, highlights the need to remove the privilege of exclusivity of domain from such legislative designations and to allow legitimate competition, growth, evolution, character-based brands to arise among such bodies whether legislated or registered independent groups interested in any professional vocation except where a demonstrably vital public good is served by such restriction.

 

Curiously, while those legislations are given exclusive control of their asserted domains over Nigerian citizens, the federal legislature provided a window for non-Nigerians to practice just about every professional vocation in Nigeria if the President so approves. Accordingly, under the Professional Bodies Special Provisions) Act, the President may issue an order, if “satisfied that it is desirable in the public interest so to do… notwithstanding anything to the contrary in any enactment” permitting the practice in Nigeria of a long list of professionals which can be extended if he so wishes including Law; Medicine; Dentistry; Midwifery and nursing; Engineering; Surveys; Architecture; Accountancy; and any other technological or scientific discipline. To make doubly sure, the Act for the benefit of any person “other than citizens of Nigeria” foreigners empowers the President to exempt any such non-Nigerian, or suspend, waive, or modify the operation of any of those professional bodies laws as to allow non-Nigerians so privileged to operate. While there are indeed sound policy imperatives that could justify such measure, the unjustifiable thing is that no window, exist legally, for Nigerians – even those who have lived in the diaspora all their professional years (with those Non-Nigerians) to practice their craft in Nigeria without undergoing the sometimes laborious conditionalities demanded by the professional groups.

 

Another class of such designated professional groups have as a commonality the affliction that the President referenced as reason for refusing to endorse the two proposed bills: designating professional realm so widely or nebulously that it becomes difficult to situate its proper perimeters. One disturbing detail that should interest the President is this: that the affliction is endemic, a fact that becomes manifestly apparent on a close scrutiny of those enabling statutes with the caveat that some are better are saying it more diplomatically than others. For while others brazenly use the definition segment to grab at as much field as they can imagine to enlarge their revenue stream and influence, others are more creative and nuanced. They shrewdly outline a limited scope overtly but then go ahead to insert a seemingly innocuous clause, nicely tucked away, not just reserve for themselves the right to subsequently expand their realm without further legislative intervention but to criminalize an attempt to practice same for gain without their approval. If the President would deign to commissions a review of existing legal instruments connected with professional bodies – including the ones he signed a one months ago in 2018, he may be surprised to find that too many of them run afoul of his expressed concerns.

 

Lastly, there is the little of non-uniformity concerning the appellate platform to which disciplinary determination of tribunals of designated go to. For instance, between 1979 and to date, successive legislatures (military and civilian) have in no particularly routed appeals from disparate professional bodies to either the High Court or the Court of Appeal even though the Federal High Court has more or less existed in its present form since 1999 – after its earlier incarnation as the Federal Revenue Court. Starting from the peculiar provision of the Legal Practitioners’ Act which routs appeals from Nigerian Legal Practitioners Disciplinary Committee created thereunder through another quasi-judicial appellate body, Appeal Committee of the Body of Benchers and then directly to the Supreme Court as enroller of all legal practitioners, even greater uncertainty remains as to appellate pathways of other professional bodies’ disciplinary tribunals. Currently, the following represent some statutory professional bodies whose disciplinary tribunals are under the review authority of the Federal High Court: Council of Nigeria Mining Engineers and Geo-Scientists (1990), Institute of Chartered Secretaries and-Administrators of Nigeria (1991), Institute of Chartered Chemists of Nigeria (1993)Institute-Of-Public-Analysts-Of-Nigeria-ACT (1992), and Medical Laboratory Science Council of Nigeria (2003).  In contrast, disciplinary tribunals of the Institute of Personnel Management of Nigeria (1992), Institute of Chartered Accountants of Nigeria Act (1965), Medical Rehabilitation Therapists Registration, Etc. (1988) route their appeal through the Court of Appeal. It goes to the question of fair hearing if some professional groups belabour their members with greater legal costs or short-circuit the Constitutionally guaranteed appellate review steps available to them.  Jurisprudentially, the clear inconsistency is not helpful while in the pursuit of public goods, it is difficult to see how that helps to massage even a veneer of equity or equality of the professions.

 

NICN: Proper but unacknowledged forum for appeals from Professional Tribunals?

NICN: Proper but unacknowledged forum for appeals from Professional Tribunals?

Apart from those functional concerns, there is now tenable ground, pursuant to sections 254C and 315 of the 1999 Constitution (as amended), to question even the constitutionality of those provisions routing some appeals to the Court of Appeal and others to the Federal High Court. Considering the compendium of powers that have been exclusively given to the National Industrial Court, it is submitted that a case can be made that the right platform to review the nature of issues those administrative tribunals are often confronted with – suspension or cancellation of licence to practice that profession – is the National Industrial Court regardless of the explicit texts of the inferior establishment Acts of professional bodies made by the National Assembly. Section 245C (1)(a),(d) and 245C (4) are particularly telling:

254C (1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

(a)     relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;

(d)      relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV [Fundamental Rights – including Fair Hearing] of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine;

(4)     The National Industrial Court shall have and exercise jurisdiction and powers to entertain any application for the enforcement of the award, decision, ruling or order made by any arbitral tribunal or commission, administrative body, or board of inquiry relating to, connected with, arising from or pertaining to any matter of which the National Industrial Court has the jurisdiction to entertain.

 

CONCLUSION

There is enough problematic provisions, functionally and legally, within the provisions of a class of federal legislations enabling the existence of various professional who together assert otherworldly influence over Nigeria’s socio-economic mobilisations. Their operations in the present format stifle economic growth – especially innovation and entrepreneurial activities in the formal economy at the State and local government level. The result is the criminalisation of otherwise legitimate socio-economic exertions that are driving public revenue, growth, employment and intellectual property development in other nations’ formal sector: aka Gross Domestic Product. Thus, they feed a propensity to observe existing laws in the breach as a survival measure among otherwise decent citizens who may find or feel themselves impaled to hug the shadowy world of tax-free informal sector operations littered gangs and criminal players – a propensity that harbours negative potentials for law enforcement, security, unity and patriotism in the country. Not reviewing the legislatively prescribed realms of these professional groups may constitute an own by a sorely challenged government pitching a policy focus on diversification of the economy as the way to go.

 

It is time to acknowledge the Jury is no longer out with regard to the promises behind the initial embrace of legislative designation. As even pioneer promoters and patrons of those bodies have admitted on record, those instruments and the professional bodies they established have not led to better vocational or professional circuits in Nigeria.

 

The standards haven’t risen across board! – which with the benefit of hindsight was an inevitable outcome. Set up, legislatively, as they were, the promoters of those bodies were denied and continue to be denied the opportunity to shoulder the responsibility for earning, maintaining and defending a reputation or brand quotient connected in the main with demonstrable value delivered in their connected socio-economic space. After being guaranteed, by legislated existence, of progressively increasing income and membership from old and new members (especially from the inevitable graduates funnelled by various tertiary institutions at home and abroad, many of whom embrace the catechism of ‘professional licensing’ before they even get their first job), it is understandable if many of those professional groups abandon, neglect, cheat on or compromise their expressed missions in terms of scale or quality. The idea of appropriating legislative access to create a professional fiefdom, apart from being so odious and so third world, is already operating as a disincentive to substantively deliver on the primary objectives for which those bodies were set up in Nigeria. 2018 should be that time in Nigeria when otherwise independent platforms can hope to receive and keep any legislated support of government only if they are shown to already command attention, embrace, buy-in and influence in the communities through the quality of their substantive contribution instead of merely their capacity to line up enough lobbying heavyweights with the access and means to bribe and/or lobby legislatures to set up levy-rich toll-gates for them – especially in the professional realms.

 

While that quest may seem certainly more urgent for those professional vocations which employ millions of Nigerians but have been, perhaps with initial good intentions, ‘professionalised’ into rent-sourcing vehicles and exclusive garlands of a few thousands, such moves should also be extended to even traditional and orthodox segments including medicine and law. For instance, there is an increasing advocacy for return to multiple/state-by-state bar certification hubs so as to release Faculties of Laws across Nigeria from their roles as five-year nurseries for the one year experience at the Nigerian Law School. It is wasteful to continue the practice of denying faculties of law across the 36 states that critical function they need to properly harness 5 years they spend with budding legal professionals by building requisite professional networks/relationship with judicial, corporate, policy and legal services centers necessary to secure their ward’s success. The Law School hasn’t proven able to contrive the magical powers to deliver either what the serviced industry expects. It is a trend that is repeated in varying degrees across the professional segments.

 

Therefore, federal laws of Nigeria purportedly establishing professional bodies for the exclusive regulation of key socio-economic segments  need to be reviewed to ensure that they are consistent with the Constitution – text and spirit. That starts with ensuring that their enabling law are reviewed to be no more than what the Constitution envisaged: as designating or incorporating instruments thereby releasing the socio-economic energies of Nigeria’s federal arrangement which has for long been legislatively kidnapped to the detriment of states and local governments. Those which legislative outline exceed the proper bounds as to delve into the artificial determination of the course of socio-economic mobilisations and employment need to be immediately revised legislatively or judicially shot down. Each of the 36 States must take seriously the task of ensuring that the Abuja-risation of Nigeria’s professional circuit is recalibrated within lawful and functional bounds. The usurpation of State and local government spaces in the economic and commerce structure of Nigeria hasn’t for decades led to a better Nigeria: may be, playing within legal limits could do it.

 

We must now be ready to admit of the possibility of State Legislatures and even Local Governments law making platforms that are better resourced (in terms of human capacity or commitments) than the Federal one (with its supervening bias for ‘federal character) – that is, smaller but better driven legislative units able to straddle the making of rigorously thought out laws that could go on to drive socio-economic developments in their communities while providing reproducible templates for the nation and duller sister federating units. We already saw it once in Lagos State when the incumbent Vice President in his former stint as Attorney General was credited with engendering various reforms which has since been embraced by a large number of the States of Nigeria aided – and even reduced to formulaic forms by the independent judicial policy organisation he co-founded after leaving office: the Justice Research Institute.

 

As awkward as it may seem, it is not altogether premature to begin to envision the emergence of State level professional groups legally imbued with credentialising or licensing powers not subordinate to any federal or national body. Say, Abia State Bar Association or Professional Accountants of Eti-Osa LGA, or Nasarawa Medical Association. It is nothing functionally or legally alien as it is the practice in most developing and developed countries – and one our Constitution certainly envisages if not for the usurpation of years past. Would there be initial awkwardness due to years of disuse? Yes. And that should be expected and allowances made to exercise out the kinks as soon as possible.  There is a sense in which ‘charter’ institutions have been deployed, especially, in the educational sectors and socio-economic deployments of some nations – like the United States of America – to demonstrably pitch alternative pathways to improving quality and standards in challenged socio-economic spheres without seeking to exclude other options: that is, bidding to enlarge policies options without stifling independent initiatives or competition in any overt way. We can learn some of those – not the colonial type ‘charter’ systems where the quest was to dominate the ‘locals’ by creating, ultimately, a monopoly for the colonialists or their cronies.

 

Unlike the current rave after State Police, good as it may be if properly conceived, there is enough room in the present constitutional framework to allow Nigerians begin to prove ourselves able to distinguish the key function of primary ‘certification’ which are institutionally located from the sometimes useful surplusage of network facilitation even if couched with some thin but shiny veneer of ‘certification’ functions. We all need to go learn how to win hearts and souls towards uniting our very diversified country. Balkanising it even further at the most isolated levels possible is self-defeating. We all need to stop misusing government powers like self-aggrandizing fools – especially among the highly educated.

 

Two bills have just been shot down. But if we don’t home into what the real issues are, other bills would just replace them after having taken care of the little draughtsmanship issues complained of by the President. Truth: there is a lot more at stake.

 

Sam Eleanya, Author, Ethics Advisor, Socio-economic and Justice Sector Policy Strategist is a social entrepreneur and journalist. He is the Principal Strategist of Tree & Trees JusticeMedia Group, publishers of LawNigeria.com (Nigeria’s most resourced and most visited/googled Legal Industry Clearing House) and facilitators of Tree & Trees Legal Practitioners. He can be reached via info@lawnigeria.com or editor@lawnigeria.com.

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