Navigating the Contours of the Right to Freedom of Association in Nigeria

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Femi Amao

University College Cork

Introduction

The evolution of the right to freedom of association in Nigeria is intertwined with the history of Nigeria as an independent modern state. Under the current legal framework in Nigeria, the right is governed mainly by the Constitution of the Federal Republic of Nigeria of 1999 (as amended). However, other significant legal instruments shape how the right is framed, protected and enforced. These include the African Charter on Human and Peoples’ Rights (African Charter) – a significant component of African Union law, the Trade Unions Act and the Labour Act.  It is important to note that the right operates in the context of legal pluralism in Nigeria where several legal systems operate side by side. There is always the potential that the right could conflict with other legal systems existing in the country such as the customary legal system. However, the courts have always upheld the supremacy of the constitutional provision on freedom of association when the provision conflicts with other legal systems. This blog post argues that Nigeria has a relatively robust framework guaranteeing freedom of association. Furthermore, the vibrancy of the Nigerian judiciary has been crucial in further developing the framework.

The Legal Framework for the Right to Freedom of Association in Nigeria

The right to freedom of association is a fundamental right in Nigeria, provided for in Chapter IV of the Constitution. Section 40 of the Constitution provides as follows:

“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests…”

Like other jurisdictions, the right to freedom of association is not absolute. The government may restrict the right under specific circumstances stated in the Constitution. Circumstances include national security, public safety, public order, public morality and public health. In addition, the right may be restricted for the purpose of protecting the rights and freedoms of other persons.

As mentioned previously, in addition to the Constitution, two significant domestic Acts are also relevant to the right in Nigeria; the Trade Unions Act and the Labour Act.  These Acts are directly relevant to trade union and labour activities.  Section 9 of the Labour Act provides that a contract of employment cannot include a condition that a worker shall or shall not join a trade union or shall or shall not relinquish membership of a trade union. The section also forbids an employer to dismiss or discriminate against an employee on account of trade union activities. Furthermore, Section 12 of the Trade Unions Act makes it an offence to deny membership of a trade union on discriminatory grounds where the applicant is otherwise eligible.  The provisions thus affirm the right of association in the trade union and employment contexts consistent with the provision of the Constitution.

As expressed in the legal framework, the right is enjoyed by both individuals and groups. However, while the Constitution protects the right to freely associate, it also implicitly provides for the freedom to opt not to associate. Individuals may therefore decide not to join any association or trade union if they do not wish to.

Additionally, Nigeria is a signatory to the African Charter on Human and Peoples' Rights. The African Charter was incorporated into the domestic law of Nigeria in 1983 through the African Charter on Human and Peoples’ Rights (Enforcement and Ratification) Act. The right to free association is protected under Article 10 of the African Charter. The consequence of the incorporation of the African Charter into Nigerian law is that the courts can enforce its provision regarding the right of association.

The Nigerian Judiciary and the Right to Freedom of Association

Nigeria has a relatively vibrant judiciary despite logistical challenges and the perception of corruption.  The vibrancy of the judiciary is reflected in the frequency of cases before the courts relating to fundamental rights including the right of association. The Nigerian courts have in most cases taken the literal approach to the interpretation of provisions on the right. The courts have consistently held the view that the duty of a judge is to interpret and not to make law. In a long line of cases, the courts have prioritised giving the natural, ordinary, or literal meaning to the provisions of the statute where the words are clear and unambiguous.  The courts have also favoured an approach that avoids reading provisions of the law in isolation. Briefly, the approach of the Nigerian courts is: first, to affirm the constitutionality of the right to freedom of association; second, to relate the constitutional provision to other relevant laws in the particular context; third, to interpret statutory provisions based on the literal approach; and finally, to apply the law to the facts. The approach shows a general trend to protect the exercise of the rights to freedom of association.

A recent decision of the Federal High Court of Nigeria (May 2024) underscores the importance of the right in Nigeria and the Court’s willingness to enforce it under the constitutional provision. The decision also shows the interplay between a statutory regulator, an association and the judiciary. The case of Dr Olusola Adeyelu vs Medical And Dental Council Of Nigeria And Nigerian Medical Association (unreported), was brought by Dr Adeyelu (the plaintiff), a medical doctor. The case was based on Section 40 of the Nigerian Constitution. The Nigerian Medical Association (NMA) is a longstanding association for medical doctors and dentists in Nigeria. Historically all doctors and dentists in Nigeria are members of the NMA. The plaintiff was a member of the NMA. However, the plaintiff became disillusioned with how the association was run, including the association’s practice of imposing additional levies on members. The plaintiff decided to relinquish his membership of the NMA and stopped paying membership fees and levies. When the plaintiff went to renew his practising licence with the Medical and Dental Council of Nigeria (the regulator by law), the Council refused to renew the licence on the ground that the plaintiff did not pay the levy prescribed by the NMA. In its judgment, the Court considered whether the membership of the NMA and the imposition of the levy are mandatory and, if so, whether this is consistent with Section 40 of the Constitution. The Court also considered whether the regulator could make membership of an association a precondition for licence renewal. The Court concluded that, in view of the provision in Section 40, membership of the NMA is not compulsory and the applicant may associate or disassociate from the NMA. The Court also held that the regulator cannot indirectly enforce membership of the NMA through its practice license regime. This latest case underscores the readiness of the Nigerian judiciary when it comes to engaging with the issue of freedom of association and enforcing the constitutional provision.

Freedom of Association and Customary Law

A feature of the Nigerian context is the tension that could arise between the right to freedom of association and other systems of laws recognised in Nigeria, especially customary law. A case on the tension between customary law and the right to freedom of association is Egri v. Uperi, decided in 1973.  The case originated from the Customary Court where the claimant sought the return of his wife from his in-laws under customary law. The wife had returned to her father after a dispute between her and the claimant. The claimant contended that he paid the required “bride price” and was therefore entitled under customary law to get his wife back. His claim failed in the lower courts, and he appealed this outcome to the High Court. Based on an interpretation of the customary law, the High Court Judge ordered that the wife should return to the husband or, failing to do that, she would be required to refund the bride price as assessed by the Court. The case was subsequently appealed to the Supreme Court. The Supreme Court reversed the decision of the High Court. In its judgment, the Court observed that any order that a wife should return, against her will, to her husband would be inconsistent with the right to freedom of association. This suggests that the courts will uphold constitutional provisions on the right to freedom of association where it appears to conflict with another legal system.

Conclusion

Nigeria has a statutory framework that guarantees freedom of association, and the statutory framework is reinforced by the regional African Charter. As shown in this blog post, the courts have been pivotal in the enforcement of the right. The courts usually take a literal approach to the interpretation of the right as exemplified in the decision in Dr Olusola Adeyelu vs Medical and Dental Council of Nigeria And Nigerian Medical Association. As shown in that decision, the Federal High Court was prepared to rule against a regulator in upholding the right to associate or disassociate. Furthermore, the tension that could arise between the right and other systems of laws recognised in Nigeria is exemplified by the example of customary law and the case of Egri v. Uperi. The courts have shown a willingness to uphold the right where there is a conflict between customary law and the right to freedom of association.

Femi Amao is a Professor at University College Cork, School of Law.

Suggested Citation: Femi Amao, 'Navigating the Contours of the Right to Freedom of Association in Nigeria' IACL-AIDC Blog (29 August 2024) Navigating the Contours of the Right to Freedom of Association in Nigeria — IACL-IADC Blog (blog-iacl-aidc.org)