My Thoughts on NCAs and the Military’s Stance on Retirement
I have been thinking.
First, I think I would be awfully rude to myself if I did not mention (or at least, slightly allude to) how rough the past few days have been in terms of my health. But I am glad to say I am up again. Perhaps, it also goes without saying that I was unable to read any new cases or articles due to the roughness of the past couple of days. Honestly? At the beginning of the week, I had already began to feel lethargic towards everything. It is a miracle that I can show up here today. That was not my plan at all. I had planned to take a break from all writing commitments, but I have just chosen to show up no matter what today. I find that doing gives me more peace than not doing.
This week, I came across the term “NCA” and it piqued my interest a lil. Now, I would not bore you with details of what an NCA is all about. I would simply just give some context and expound on my perceptions of it. I think that aligns with the whole essence of this medium account: I am not here to lecture but give opinions (and plausible answers).
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That said an NCA is short for a Non-Compete Agreement. It is typically used to protect confidential information of businesses. However, in Nigeria, you should know that an NCA must pass the reasonability test to be considered enforceable by the Nigerian Courts. This is very important because the NCA is a restrictive contract in which the most vulnerable party, being the employee, must be protected. Hence, if there are no safeguards, the NCA would be used arbitrarily.
The Nigerian Courts would typically consider reasonability in terms of the duration, scope and geographical reach. This, to me, is very important because limiting the scope of an employee’s ability to get employment by making the reach of the NCA too geographically wide and the duration too long is largely unfair. Another thing worth considering is the fact that the NCA must be protecting an actual legitimate interest of the business. If this is not the case, then, the employee is being punished for no precise or specific reason. More so, where there is, in fact, a legitimate interest to be protected, it must go beyond competition. I could understand the rationale behind this and I agree.
Also, this week, I came across the news that the Nigerian army stated that they are suspending retirement. This was aimed at retaining manpower, experience and operational capacity as they respond to the rising insecurity in the country. This got me to wonder if it violated the provision of Section 306 of the CFRN 1999 on voluntary resignation and the ruling of the NICN in Jeremiah v. Chief of Air Staff and another. On second thought, I thought that it must have violated both the provisions of the CFRN and case law. But, then again, it is left to members of the army to challenge that statement in Court, should they consider the possibility of early retirement.
I also wondered if the army could use the provisions of Section 45 of the CFRN 1999 on derogation from some fundamental human rights as a defense. In this case, the fundamental human rights to be derogated from will be the right to peaceful assembly and association, if we extended the ambits of the rights to association to also include the right to dissociate. You know, I think that rights, especially fundamental human rights, are comprehensive enough to accommodate the choice to do or to not do a thing. For instance, to the right of movement, there must also be an attendant right to not move. Hehe.
And that is it! Any thing new?
