Human rights lawyer, Jiti Ogunye, has given insights into how the Kaduna State Government could legally sack its 21,780 primary and secondary school teachers who recently failed the competency test conducted by the government.
Mr. Ogunye, in a Facebook post on Saturday, argued that the teachers cannot be mass-sacked, but the government can employ imaginative ways of sacking them within the ambit of the law.
The case of the teachers has spurred controversies in recent days after evidences emerged that the teachers performed woefully in the competency test conducted by the government.
Some of the scripts released by the government showed that many of the teachers supplied ridiculous answers to basic questions while about two-thirds of the teachers failed to score up to 75 per cent in the grading.
The release of the scripts sparked outrage on the internet, with many Nigerians lamenting the sorry state of basic education in the state and across the country.
The Kaduna State government has since vowed to sack the affected workers, despite threats by the local chapter of the Nigerian Union of Teachers, NUT, to embark on indefinite strike.
The government also said it will recruit 25,000 qualified teachers in their stead.
In his intervention, Mr. Ogunye maintained that the poor performance of the teachers in basic and elementary competency tests is less the failure of the teachers than it is of governance and the Nigerian education system, adding that it is a rot the nation will have to confront.
The lawyer said that the Nigeria Labour Congress, NLC, the teachers and other political opponents of the state governor, Nasir El Rufai, may be at war with him for "self-preservation and opportunistic reasons" but what the governor truly deserves is commendation and not condemnation for bringing this matter to the front burner of public discourse.
He said, "The issue of quota system, educationally disadvantaged states and nepotism in our public tertiary education, and mediocrity in the workforce begin with a faulty, caricature primary and secondary education.
For years, many of the northern states have shunned Teachers Development and Needs Assessment (TDNA) projects and processes. El Rufai is now seizing the bull by the horn.
"In the circumstances, the teachers who can't perform the task of teaching must be trained to determine whether some of them can be salvaged. If they remain ineducable, then they must be disengaged lawfully, with labour and human dignity, and with their workers and employment rights being respected.
"In spite of the fact that the teachers have failed these tests, they are public servants, employed by the Teaching Service Commission or Civil Service Commission, Kaduna State, as the case may be.
"They have security of tenure, meaning their appointments cannot be terminated as if they are private sector employees, who are on a contract of personal service, and whose appointments can be terminated, based on the hiring and firing prerogative or discretion of the employer of labour, subject to agreed to notice being given."
Members of Nigeria Union of Teachers (NUT), Kaduna State chapter stage a walk protesting over the sack of their colleagues, in front of the State House of Assembly in Kaduna on Wednesday (8/11/17). The protest follows Kaduna State Government's plan to sack about 21,780 teachers who failed competence test. 05958/8/11/2017/Suleiman Shuaibu/B. Jones/NAN
According to Nigerian law, Mr. Ogunye said, the teachers cannot be mass sacked except there is redundancy in terms of conflation of jobs or lack of teaching positions which is not the case. He said the government must approach the sack with the instrumentality of the law.
"The approach to be adopted could be, making the Teaching Service Commission or Civil Service Commission, as the case may be, to issue queries to all the teachers, to which the results of their performances in the tests and the questions administered to them will be attached. This may be laborious, but it has to be meticulously done. The idea is to characterise the mass failure as "an act of (gross) misconduct", warranting dismissal or termination of employment with severance benefits.
"Under the Public Service Rules, acts constituting misconduct are defined. But generally the categories of acts that may constitute misconduct are never closed. Incapacity to teach could be argued and adjudged as an act of misconduct. There are provisions in the Rules which specifically or liberally can be interpreted to make incapacity to teach an act of (gross) misconduct, warranting dismissal from service.
"Upon being served the queries, the teachers will then be invited in batches to disciplinary panels (many of such panels may be established for reason of administrative convenience) to satisfy the requirement of 'fair hearing' and eventually all of the teachers could be dismissed."
Explaining further, he noted that if the teachers upon their dismissal resort to litigation at the National Industrial Court, their case may not succeed because "the wind would have been taken out of their sail".
The 'wind' in the sail of unlawful dismissal cases is usually the contention that the law and due process of law were not followed in dismissing a civil servant, he explained.
"But if the (above) discussed steps are taken, the arguments of unlawful dismissal is likely to be defeated because it will be obvious that the teachers were afforded fair hearing, before being sacked etc.
"They can't then argue that 'o yes, we failed the tests but incapacity to teach is not an act of misconduct'.
No matter how labour-centric or workers-friendly the court is, being a National Industrial Court, the court will be too embarrassed to grant the workers the remedy of reinstatement.
"The point is that while the proposed sack may be avoided by resorting to a long term training and retraining of the teachers; or by a mass redeployment of the teachers to an appropriate ministry in the state ( for example agriculture ministry to engage in large scale, state owned mechanized farming ) considering the unemployment, poverty aggravation, and humanitarian implications of the sack, if, after all things are considered, the government is resolved to offload the teachers as the best option in the circumstances, the mass sack should be done within the confines of the rule of law, and it will be legal and legitimate."
Mr. Ogunye, however, lamented the state of affairs across every strata of the Nigerian society, adding that if he was the Kaduna State governor, he would first opt for retraining of the teachers.
"If I were the governor, my first preference would be training and retraining. And after salvaging some of the teachers, if there are such a number, the rest who are irredeemable could be sent to other ministries, as appropriate; or dismissed under the rule of law."
"This issue does not call for the mocking of the teachers," he said. "It calls for the examination of our systems that are in a state of all round failure: education, healthcare, law enforcement, politics, government, religions etc."