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Tuesday, September 22, 2020

UTG lecturer strike is illegal — Dr Carrol

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Read the full statement below The much talked about “Sit-Down Strike” of The University Of The Gambia Staff Association (U.T.G.S.A.), is indeed illegal from multifarious legal angles, including The Labour Act (2007). The aforesaid strike is equivalent to “an industrial action”, which is defined by Section 2 of the aforesaid Act thus:- “…a concerted withdrawal of labour or restriction on the availability or quantity of labour on the part of workers, or a lockout by which one or more employers deny work to workers”. Section 3 Sub-Section 2 of the aforesaid Act reads:- “The Act does not apply to: (a)    The Civil Service,  (b)  the Armed Forces except those employed in a civil capacity,  (c) the National Guard, Police Force, Security Service or the Prisons Service, except those employed in a civil capacity, (d) Domestic Service, (e) Employment of a member of the employer’s household living in the employer’s house” “The Civil Service” means “Government Ministries and their line Departments”. “The Public Service” means “The Civil Service plus Parastatals”. Although The U.T.G. is not part of The Civil Service nonetheless, it is certainly part of The Public Service, since it is a Public Service Institution, which provides academic services to qualified people who want to study for different Degrees or Diplomas, which are finally awarded to successful Candidates, by His Excellency The President Of The Republic Of The Gambia, who also Officially doubles as “The Chancellor Of The U.T.G.”, according to The U.T.G. Act (1999). The present Gambian President, His Excellency Mr Adama Barrow, The First President Of The Gambia’s 3rd Republic, is now therefore, the new U.T.G. Chancellor. The U.T.G. is also governed by “The Code Of Conduct For Public Officers” in The Gambia’s 1997 Constitution. This clearly brings The U.T.G. within the ambit of The Labour Act (2007). The U.T.G also falls squarely within the jurisdiction of The Ombudsman Act (1997), because Section 3 (1) (A) of this Act reads:- “In addition to the functions of the Ombudsman under the Constitution, the Ombudsman shall have the following functions:- (a) to investigate complaints of injustice, corruption, abuse of power, maladministration and unfair treatment of any person by a public officer in the exercise of official duties”. As from Christmas Eve (ie 24th December 2014), Mrs Fatou Njie-Jallow is the present Honourable Ombudsman Of The Gambia. From 31st March 2006  to 31st March 2014, I was the Legal Adviser of The Attorney General’s Chambers & Ministry Of Justice, to the West African Examinations Council – W.A.E.C. (Banjul Office), and Mrs Fatou Njie-Jallow was the able Chairperson of its Board. Alhajie Mr Alpha A. Khan (J.P.), my good friend, the then able Principal of The 22nd July Academy and presently The Deputy Chairman Of The U.T.G. Governing Council, was its able Deputy Chairman. The big bone of contention between The U.T.G.S.A. and The U.T.G. Senior Management Team (U.T.G.S.M.T.) is that, a few weeks ago, The U.T.G.S.M.T. spent millions of Dalasis to buy 6 new Official vehicles for Members Of the  University Administration, at the expense of pressing and urgent needs of both The U.T.G.S.A. and The U.T.G. Students Union (U.T.G.S.U.). The U.T.G.S.A. therefore openly accused The U.T.G.S.M.T. of “incompetence, inefficiency and misplaced priorities” and therefore threatened to embark on a sit-down strike, if their demands were not urgently and fully met by The U.T.G.S.M.T. The U.T.G.S.U. also demanded for the resignations of The Vice Chancellor and other members of The U.T.G.S.M.T. Professor Anjum, the Pakistani-born Vice Chancellor, also wanted to sue Dr Ismalia Ceesay, President Of The U.T.G.S.A. for allegedly defaming him and other members of The U.T.G.S.M.T. According to an eye-catching article published on the 2nd March 2017 publication of The Foroyaa Newspaper, entitled:- “U.T.G. Management Sit-Down Strike Unwarranted”, by Aja Musa Bah-Daffeh, Gambian-born Professor Ousman Nyan, The Acting Vice Chancellor (V.C.) of The U.T.G., during a Press Conference by The U.T.G.S.M.T., held on 1st March 2017, at The Faculty Of Law Of The U.T.G. said, that The U.T.G.S.M.T has requested for a meeting with The U.T.G.S.A., but the U.T.G.S.A. insisted on meeting with The V.C. alone, which he said was granted. “At the last meeting between the Executive of U.T.G.S.A. and The V.C., certain demands were made, such as:- dissolution of the entire S.M.T., Staff Training and Salary Restructure, Teaching and Learning Materials, Laboratories and Classrooms etc” said Professor Nyan. He went on to say that the Pakistani-born V.C., Professor Faqir Anjum, has promised to look into their concerns and he appealed to The U.T.G.S.A. to give him at least six months to solve their key demands. Here V.C. Professor Anjum, was clearly asking members of the U.T.G.S.A. for “…a cooling off period…” or “… a cease fire…”, he was offering them “an olive branch” , which the latter blatantly refused to accept, due to its belligerent or confrontational stands relating to its illegal strike. Prof. Nyan said, that this is the second time that The U.T.G. academic calendar has been disrupted by a statement or actions of the Staff Association, and this is a disservice to the Nation and the Students. He also said that, on assuming duty in October 2016, the V.C. shared his vision and plans with the entire U.T.G. Community and its Stakeholders, and has been actively pursuing opportunities for support within and beyond The Gambia. Prof. Nyan finally said that, for the avoidance of doubt, any U.T.G. employee or worker who fails to report to work without any legitimate reason, will be sanctioned accordingly. Members of The U.T.G.S.M.T. who also spoke at that Press Conference and who collectively condemned the strike were:- My Learned Friend, Mr Almamy Fanding Taal, a Senior Law Lecturer Of The U.T.G., Mr Muhammed Lamin Taro, The U.T.G’s Registrar and Mr Ansumana B. Bojang, The President Of The U.T.G’s Students’ Union, who also Officially doubles as, The President Of The National Union Of Gambian Students. Since the aforesaid demands of The U.T.G.S.A. were not met by The U.T.G.S.M.T., on 1st March 2017, The U.T.G.S.A started in earnest, its Sit-Down Strike. U.T.G. Lecturers from Faculties of:- Law, Agriculture and Science, are rightly not taking part in the strike. It is of paramount important to point out that, it was around Monday 27th February 2017, that The U.T.G.S.A. held a noisy or boisterous Press Conference at The Faculty Of Law, and it was on 1st March 2017, that its so called Sit-Down Strike started, barely about less than a week’s notice to The U.T.G.S.M.T., that they intended to embark on the aforesaid strike, which is equivalent to “an industrial action” under The Labour Act (2007). Before that Press Conference, The U.T.G.S.A. had earlier on (about a fortnight ago, when the aforesaid Official cars were delivered by T.K. Motors Company), gave an oral notice to The U.T.G.S.M.T., that they intended to embark on a Sit-Down Strike, if their aforesaid demands, were not met by The U.T.G.S.M.T. This was also a very short notice, because within that short time, The U.T.G.S.M.T. was not able to successfully meet all of the aforesaid demands of The U.T.G.S.A. Section 139(1)(A) of The Labour Act (2007) reads:- “The following industrial actions are deemed improper industrial actions and may be prohibited by order of the High Court, on the application of an employer affected by the action:- (a)    Subject to the provisions of subsection (2), action of which fourteen days notice has not been given in writing to the Commissioner…” On Saturday 4th March 2017, I phoned The Commissioner Of Labour, and he clearly confirmed to me, that he never received any notice (be it oral or written), from The U.T.G. Lecturers, informing him of their avowed intention to embark on a Sit-Down Strike or Industrial Action, if their demands were not met by The U.T.G.S.M.T. This clearly means that, the aforesaid strike was tantamount to a monumental illegality, and all those U.T.G. Lecturers who are part of the said strike, (as a last resort), can rightfully be Charged with the Criminal Offence of “Breach Of The Peace”, contrary to The Public Order Act (1961). “He who comes to equity, must come with clean hands”, as the famous equity maxim goes. “Ingorantia juris non excusat” (Latin ie ignorance of the law, is no excuse). Although the aforesaid Act does not define the aforesaid Offence, nonetheless The Oxford Dictionary Of Current English (3rd Edition by Catherine Soanes), authoritatively defines it thus:- “The Criminal Offence of behaving in a violent or noisy way in public”. The Oxford Dictionary Of Law gives a more detailed legal definition of the aforesaid Offence thus:- “The state that occurs when harm is done or likely to be done to a person or (in his presence) to his property, or when a person is in fear of being harmed through an assault, affray or other disturbance…” To conclude, members of The U.T.G.S.A. who are presently on a Sit-Down Strike or an Industrial Action, should urgently advise themselves, to call off the aforesaid strike/action immediately, go to the negotiating table and engage in a fruitful dialogue with The U.T.G.S.M.T., with a view to finding a satisfactory solution to their plethora of problems, because the continuation of their illegal strike, is tantamount to allegedly violating “The Right To Education” of present day U.T.G Students, which is clearly encapsulated in Section 30 of The Gambia’s 1997 Constitution, or else they will run the unwise and monumental risk, of facing the full force of the law. Paradoxically or ironically, the U.T.G. Students, on whose behalf The U.T.G.S.A. is partially striking for, is not at all in support of the aforesaid strike, as evidenced by a recent utterance of Mr Ansumana B. Bojang, The President Of The U.T.G. Students’ Union in the aforesaid Press Conference, conducted at the Faculty Of Law, on Wednesday 1st March 2017. I have been asked by many U.T.G. Students to write this instructive and well researched legal article, and I am now doing so Pro Bono Publico (Latin ie for the good of the public). “Deep in the woods, there diverges two roads, and I have chosen the one less travelled by, and that has made the entire difference”. Homer, Roman Poet. “Once to every man and nation, comes the moment to decide, in the strife of truth with falsehood, for the good or evil side” – James Russell Lowell (1819-91), British Methodist Hymn Writer. “Blessed are the peace makers, for they shall be called, the children of God” – Matthew Chapter 5 Verse 9 – The Holy Bible. Perhaps The Holy Quran for Muslims and The Holy Torah for Jews, have similar theological quotations. Note:- The Author, DR. Henry D.R. Carrol (M.R.G.), is inter alia, a Founder Senior Law Lecturer Of The Faculty Of Law Of The University Of The Gambia (from 2007 to date), a Visiting Professor Of Land Law at Kwame Nkrumah University Of Science & Technology (2012) and The Legal Adviser Of The Labour Advisory Board, established under Sections 22, 23, 24 & 25 Of The Labour Act (2007), to legally advise The Honourable Minister Of Trade, Industry, Regional Integration & Employment (presently Honourable DR Mrs Isatou Touray) and her staff, on Labour matters. The latter Official title of The Author, was publicly detested by Ms Mama Fatima Singhateh, an ex-Attorney General & Minister Of Justice.The much talked about “Sit-Down Strike” of The University Of The Gambia Staff Association (U.T.G.S.A.), is indeed illegal from multifarious legal angles, including The Labour Act (2007). The aforesaid strike is equivalent to “an industrial action”, which is defined by Section 2 of the aforesaid Act thus:- “…a concerted withdrawal of labour or restriction on the availability or quantity of labour on the part of workers, or a lockout by which one or more employers deny work to workers”. Section 3 Sub-Section 2 of the aforesaid Act reads:- “The Act does not apply to: (a) The Civil Service, (b) the Armed Forces except those employed in a civil capacity, (c) the National Guard, Police Force, Security Service or the Prisons Service, except those employed in a civil capacity, (d) Domestic Service, (e) Employment of a member of the employer’s household living in the employer’s house” “The Civil Service” means “Government Ministries and their line Departments”. “The Public Service” means “The Civil Service plus Parastatals”. Although The U.T.G. is not part of The Civil Service nonetheless, it is certainly part of The Public Service, since it is a Public Service Institution, which provides academic services to qualified people who want to study for different Degrees or Diplomas, which are finally awarded to successful Candidates, by His Excellency The President Of The Republic Of The Gambia, who also Officially doubles as “The Chancellor Of The U.T.G.”, according to The U.T.G. Act (1999). The present Gambian President, His Excellency Mr Adama Barrow, The First President Of The Gambia’s 3rd Republic, is now therefore, the new U.T.G. Chancellor. The U.T.G. is also governed by “The Code Of Conduct For Public Officers” in The Gambia’s 1997 Constitution. This clearly brings The U.T.G. within the ambit of The Labour Act (2007). The U.T.G also falls squarely within the jurisdiction of The Ombudsman Act (1997), because Section 3 (1) (A) of this Act reads:- “In addition to the functions of the Ombudsman under the Constitution, the Ombudsman shall have the following functions:- (a) to investigate complaints of injustice, corruption, abuse of power, maladministration and unfair treatment of any person by a public officer in the exercise of official duties”. As from Christmas Eve (ie 24th December 2014), Mrs Fatou Njie-Jallow is the present Honourable Ombudsman Of The Gambia. From 31st March 2006 to 31st March 2014, I was the Legal Adviser of The Attorney General’s Chambers & Ministry Of Justice, to the West African Examinations Council – W.A.E.C. (Banjul Office), and Mrs Fatou Njie-Jallow was the able Chairperson of its Board. Alhajie Mr Alpha A. Khan (J.P.), my good friend, the then able Principal of The 22nd July Academy and presently The Deputy Chairman Of The U.T.G. Governing Council, was its able Deputy Chairman. The big bone of contention between The U.T.G.S.A. and The U.T.G. Senior Management Team (U.T.G.S.M.T.) is that, a few weeks ago, The U.T.G.S.M.T. spent millions of Dalasis to buy 6 new Official vehicles for Members Of the University Administration, at the expense of pressing and urgent needs of both The U.T.G.S.A. and The U.T.G. Students Union (U.T.G.S.U.). The U.T.G.S.A. therefore openly accused The U.T.G.S.M.T. of “incompetence, inefficiency and misplaced priorities” and therefore threatened to embark on a sit-down strike, if their demands were not urgently and fully met by The U.T.G.S.M.T. The U.T.G.S.U. also demanded for the resignations of The Vice Chancellor and other members of The U.T.G.S.M.T. Professor Anjum, the Pakistani-born Vice Chancellor, also wanted to sue Dr Ismalia Ceesay, President Of The U.T.G.S.A. for allegedly defaming him and other members of The U.T.G.S.M.T. According to an eye-catching article published on the 2nd March 2017 publication of The Foroyaa Newspaper, entitled:- “U.T.G. Management Sit-Down Strike Unwarranted”, by Aja Musa Bah-Daffeh, Gambian-born Professor Ousman Nyan, The Acting Vice Chancellor (V.C.) of The U.T.G., during a Press Conference by The U.T.G.S.M.T., held on 1st March 2017, at The Faculty Of Law Of The U.T.G. said, that The U.T.G.S.M.T has requested for a meeting with The U.T.G.S.A., but the U.T.G.S.A. insisted on meeting with The V.C. alone, which he said was granted. “At the last meeting between the Executive of U.T.G.S.A. and The V.C., certain demands were made, such as:- dissolution of the entire S.M.T., Staff Training and Salary Restructure, Teaching and Learning Materials, Laboratories and Classrooms etc” said Professor Nyan. He went on to say that the Pakistani-born V.C., Professor Faqir Anjum, has promised to look into their concerns and he appealed to The U.T.G.S.A. to give him at least six months to solve their key demands. Here V.C. Professor Anjum, was clearly asking members of the U.T.G.S.A. for “…a cooling off period…” or “… a cease fire…”, he was offering them “an olive branch” , which the latter blatantly refused to accept, due to its belligerent or confrontational stands relating to its illegal strike. Prof. Nyan said, that this is the second time that The U.T.G. academic calendar has been disrupted by a statement or actions of the Staff Association, and this is a disservice to the Nation and the Students. He also said that, on assuming duty in October 2016, the V.C. shared his vision and plans with the entire U.T.G. Community and its Stakeholders, and has been actively pursuing opportunities for support within and beyond The Gambia. Prof. Nyan finally said that, for the avoidance of doubt, any U.T.G. employee or worker who fails to report to work without any legitimate reason, will be sanctioned accordingly. Members of The U.T.G.S.M.T. who also spoke at that Press Conference and who collectively condemned the strike were:- My Learned Friend, Mr Almamy Fanding Taal, a Senior Law Lecturer Of The U.T.G., Mr Muhammed Lamin Taro, The U.T.G’s Registrar and Mr Ansumana B. Bojang, The President Of The U.T.G’s Students’ Union, who also Officially doubles as, The President Of The National Union Of Gambian Students. Since the aforesaid demands of The U.T.G.S.A. were not met by The U.T.G.S.M.T., on 1st March 2017, The U.T.G.S.A started in earnest, its Sit-Down Strike. U.T.G. Lecturers from Faculties of:- Law, Agriculture and Science, are rightly not taking part in the strike. It is of paramount important to point out that, it was around Monday 27th February 2017, that The U.T.G.S.A. held a noisy or boisterous Press Conference at The Faculty Of Law, and it was on 1st March 2017, that its so called Sit-Down Strike started, barely about less than a week’s notice to The U.T.G.S.M.T., that they intended to embark on the aforesaid strike, which is equivalent to “an industrial action” under The Labour Act (2007). Before that Press Conference, The U.T.G.S.A. had earlier on (about a fortnight ago, when the aforesaid Official cars were delivered by T.K. Motors Company), gave an oral notice to The U.T.G.S.M.T., that they intended to embark on a Sit-Down Strike, if their aforesaid demands, were not met by The U.T.G.S.M.T. This was also a very short notice, because within that short time, The U.T.G.S.M.T. was not able to successfully meet all of the aforesaid demands of The U.T.G.S.A. Section 139(1)(A) of The Labour Act (2007) reads:- “The following industrial actions are deemed improper industrial actions and may be prohibited by order of the High Court, on the application of an employer affected by the action:- (a) Subject to the provisions of subsection (2), action of which fourteen days notice has not been given in writing to the Commissioner…” On Saturday 4th March 2017, I phoned The Commissioner Of Labour, and he clearly confirmed to me, that he never received any notice (be it oral or written), from The U.T.G. Lecturers, informing him of their avowed intention to embark on a Sit-Down Strike or Industrial Action, if their demands were not met by The U.T.G.S.M.T. This clearly means that, the aforesaid strike was tantamount to a monumental illegality, and all those U.T.G. Lecturers who are part of the said strike, (as a last resort), can rightfully be Charged with the Criminal Offence of “Breach Of The Peace”, contrary to The Public Order Act (1961). “He who comes to equity, must come with clean hands”, as the famous equity maxim goes. “Ingorantia juris non excusat” (Latin ie ignorance of the law, is no excuse). Although the aforesaid Act does not define the aforesaid Offence, nonetheless The Oxford Dictionary Of Current English (3rd Edition by Catherine Soanes), authoritatively defines it thus:- “The Criminal Offence of behaving in a violent or noisy way in public”. The Oxford Dictionary Of Law gives a more detailed legal definition of the aforesaid Offence thus:- “The state that occurs when harm is done or likely to be done to a person or (in his presence) to his property, or when a person is in fear of being harmed through an assault, affray or other disturbance…” To conclude, members of The U.T.G.S.A. who are presently on a Sit-Down Strike or an Industrial Action, should urgently advise themselves, to call off the aforesaid strike/action immediately, go to the negotiating table and engage in a fruitful dialogue with The U.T.G.S.M.T., with a view to finding a satisfactory solution to their plethora of problems, because the continuation of their illegal strike, is tantamount to allegedly violating “The Right To Education” of present day U.T.G Students, which is clearly encapsulated in Section 30 of The Gambia’s 1997 Constitution, or else they will run the unwise and monumental risk, of facing the full force of the law. Paradoxically or ironically, the U.T.G. Students, on whose behalf The U.T.G.S.A. is partially striking for, is not at all in support of the aforesaid strike, as evidenced by a recent utterance of Mr Ansumana B. Bojang, The President Of The U.T.G. Students’ Union in the aforesaid Press Conference, conducted at the Faculty Of Law, on Wednesday 1st March 2017. I have been asked by many U.T.G. Students to write this instructive and well researched legal article, and I am now doing so Pro Bono Publico (Latin ie for the good of the public). “Deep in the woods, there diverges two roads, and I have chosen the one less travelled by, and that has made the entire difference”. Homer, Roman Poet. “Once to every man and nation, comes the moment to decide, in the strife of truth with falsehood, for the good or evil side” – James Russell Lowell (1819-91), British Methodist Hymn Writer. “Blessed are the peace makers, for they shall be called, the children of God” – Matthew Chapter 5 Verse 9 – The Holy Bible. Perhaps The Holy Quran for Muslims and The Holy Torah for Jews, have similar theological quotations. Note:- The Author, DR. Henry D.R. Carrol (M.R.G.), is inter alia, a Founder Senior Law Lecturer Of The Faculty Of Law Of The University Of The Gambia (from 2007 to date), a Visiting Professor Of Land Law at Kwame Nkrumah University Of Science & Technology (2012) and The Legal Adviser Of The Labour Advisory Board, established under Sections 22, 23, 24 & 25 Of The Labour Act (2007), to legally advise The Honourable Minister Of Trade, Industry, Regional Integration & Employment (presently Honourable DR Mrs Isatou Touray) and her staff, on Labour matters. The latter Official title of The Author, was publicly detested by Ms Mama Fatima Singhateh, an ex-Attorney General & Minister Of Justice.]]>

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