Nigerian workers have the constitutional right to engage in politics, according to attorney Femi Falana.

He was reacting to the central government’s order for civil staff to abstain from politics.

The Supreme Court’s ruling that the stay-off order was irrational was cited by the Senior Advocate of Nigeria (SAN).

In a memo dated May 5, 2022, Nigeria’s Head of Service, Folashade Yemi-Esan, directed federal servants to follow the Public Service Rules (PSR) (2008 version) regarding partisan politics.

She noted that numerous demands for clarification on the ruling of the supreme court had flooded her office.

She came to her stay-off decision based on a legal opinion from Nigeria’s Attorney-General of the Federation, Abubakar Malami. Falana, however, took issue with the conclusion and, consequently, the thesis (Malami’s viewpoint).

Falana stated, “Like other citizens, workers are equally entitled, by virtue of section 39 of the Constitution, to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference,” in a lengthy opinion piece that was made accessible to the Nigerian Tribune.

The Court of Appeal invalidated the police permit for rallies and other public gatherings in Inspector-General of Police v. All Nigeria Peoples Party (2008) 12(WRN 65) on the grounds that it violated the citizens’ fundamental rights to freedom of expression and association, which are protected by sections 39 and 40 of the Constitution.

“In accordance with the ruling, the police are required by Section 83 of the Police Establishment Act 2020 to ensure that attendees at public meetings and nonviolent rallies have appropriate security.”

“In addition to constitutional provisions, the Nigerian government has ratified the African Charter on Human and Peoples’ Rights (ACHPR) 1981, the International Covenant on Economic, Social, and Cultural Rights (ICCPR)5 both of 1966, and the United Nations Universal Declaration of Human Rights of 1948, which guarantee freedom of expression and association.

The International Labour Organization (ILO) has established two conventions that uphold workers’ freedom to organize: the Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87)6 and the Right to Organise and Collective Bargaining Convention 1949 (No. 98). The National Industrial Court has been granted exclusive jurisdiction by Section 254C(2) of the Constitution to enforce the terms of all ILO Conventions that Nigeria has ratified.

Falana provided the following justification for the apex court’s precedent: “In the case of Independent National Electoral Commission v. Balarabe Musa & Ors (2003) 10 WRN 1, the Supreme Court criticized the civil service regulations that limit the involvement of civil servants and other public servants in county politics.

“Honorable Justice Ayoola JSC stated in the supreme court’s leading judgment that,

“There is no legitimate reason in a democratic society to deny a public servant or member of the civil service the right to register as a political party in the name of defense, public safety, public order, public morality, or public health.” It was incorrect to argue that the limitation constitutes a legitimate departure from section 40 under section 45 (1)(a) of the Constitution.

The 1999 Constitution’s Section 40 contains unambiguous provisions, according to Mr. Justice Uwais, the Chief Justice of Nigeria at the time, in his concurring opinion. Their import is to allow ‘every person,’ including public office holders and civil officials, the freedom to congregate freely and associate with other persons to organize or belong to any political party, or trade union or any other association for the protection of his interests.

“There is no restriction on the section’s applicability to civil workers or public officers, nor has it provided any exceptions.

“Sections 7, 66 (1); 107 (1) (f); 137 (1) (g); 142 (2); 182 and 187(2) of the 1999 Constitution allow civil servants and other public officers who wish to contest elections to resign their positions 30 days prior to the date of elections for all the various positions of president and vice president, governors and deputy governors, federal and state legislators, chairmen and councillors. This is true even though the legal validity of the civil service rules was not contested in the case. Refer to ADAMU V. TAKORI (2010) ALL FWLR (P. 540) 1387 (C.A.); PPA v. PDP & ORS (2009) LPELR-4865; FAYEMI v. ONI & ORS (2019) LPELR-46623(CA);

“It is contended that private sector employees have an equal right to run for office without facing any legal complications, even if the Constitution is silent on this matter.

“However, like civil servants, private sector workers who wish to contest elections are advised, subject to agreements reached with their employers, and/or the applicable conditions of service, to resign their positions or ask for leave of absence.

Therefore, it is the responsibility of both public and private sector employees to cease worrying about the issues facing the nation.

He continued, saying, “Now is the time to organize with other radical, pro-labor, and human rights forces and insist that a new Nigeria is possible.”

Malami, in his legal opinion, argued, “Neither the 1999 Constitution nor the Supreme Court has authorized civil servants to engage in partisan politics. “Since the Supreme Court did not overturn the provisions of Rules 030422 and 030423 of the Public Service Rules (2008 Edition), they are still in effect and apply to all civil officials who wish to take part in nomination processes or party primaries.