Maters Arising From Pension Laws For Former Governors’ Deputy Governors And Other Political Office Holders In States

By Ivor Takor, mni Esq.

INTRODUCTION

Some Governors, among them, those who failed in eight years to enact laws to take care of pension of workers of States and Local Governments they superintended over, were able to within a short period, with the help of members of their ever “cooperative” Houses of Assemblies to enact laws that guaranteed for them for life, bloated pension, allowances, which include houses, bullet proof vehicles, domestic helps and security personnel as well as provisions for medical tourism, in the name of Pension Rights for Political Officeholders or whatever names so called.

CRITICISMS OF THE ACTIONS OF THE FORMER GOVERNORS

It therefore did not come as a surprise when criticism of the actions of these former Governors became wide and diverse, coming from trade unions, pensioners, civil society Organisations, lawyers and the general public. The Socio-Economic Rights and Accountability Project (SERAP), did not stop at criticizing the actions of these former Governors and the States Pension Laws. The group challenged the matter in court and obtained a landmark judgement.

JUDICIAL PRONOUNCEMENTS

There have also been judicial pronouncements on the issue of pension for former Governors, their deputies and other Political Officeholders.

FEDERAL HIGH COURT LAGOS

It was widely report in the media that the Federal High Court in Lagos in a landmark judgment had ordered the Federal Government to “recover pensions collected by former governors now serving as ministers and members of the National Assembly, and directed the Attorney General of the Federation and Minister of Justice Mr Abubakar Malami, SAN to challenge the legality of states’ pension laws, permitting former governors and other ex-public officials to collect such pensions.”

The judgment by Justice Oluremi Oguntoyinbo followed an application for an order of mandamus in suit number FHC/L/CS/1497/2017 brought by SERAP.

NATIONAL INDUSTRIAL COURT

Another step taken that led to a judicial pronouncement on the matter, came from what would have been termed to be a very unlikely quarter, except that it came from a quarter that was clothed with a garment of greed. Garba Umar, a former acting governor of Taraba State from October 2012 to 2013, who was chosen by the late Governor Danbaba Suntai as his Deputy after the impeachment of the then Deputy Governor , Sani Abubakar. Garba Umar was sacked by the Supreme Court in 2014 when the apex court ruled that Abubakar’s impeachment was illegal and ordered his reinstatement. Garba Umar had dragged the state government to the National Industrial court Jos, claiming that he was entitled to gratuity as a former governor of the state, 300 per cent of his salary as medical allowance and other benefits as provided in Taraba State Governor and Deputy Governor’s Pension Law, 2015.

Justice Kenneth Amadi of the Jos Division of the National Industrial Court (NICN), on December 9, 2019, nullified the Taraba State Governors’ Pension Law.

In its ruling, the court held that it appeared that there was a “contradiction by the provision of section 124(5) ‘of the 1999 Constitution’ which enabled the House of Assembly of a state to provide for pension or gratuity to governors and deputy governors which items are also placed under the exclusive legislative list under Part 1, of the Second Schedule to the 1999 Constitution.”

The court further ruled that: “The question then is how to reconcile these two provisions of the constitution. The answer is by adopting a purposeful approach by which the court is required to look at the constitution as a whole and construe its provisions in such a way as to give effect to the general and specific purposes for which it was enacted; that is good governance and the welfare of all Nigerians based on the principles of equality and justice.”

The court went further to hold that the state houses of assembly in Nigeria did not have the power to fix any amount in remuneration to its past governors and deputy governors as “pension or gratuity unless the Revenue Mobilisation Allocation and Fiscal Commission first of all determined an amount as pension and gratuity to past governors and deputy governors in which case such amount, so fixed, shall not exceed the amount as have been determined by the Revenue Mobilisation Allocation and Fiscal Commission.”

The court, therefore, held that since the commission had not fixed any amount as pension and gratuity for past Governors and Deputy Governors in Nigeria, any law made by any state house of assembly granting pension and gratuity to its past Governors andDeputy Governors was null and void.

Consequently, the court ruled that “the Taraba State governor and deputy governor’s pension law, 2015 is null and void.”

JUDGEMENT OF THE PRESIDENT OF THE NATIONAL INDUSTRIAL COURT, JUSTICE BENEDICT KANYIP

However, a judgment delivered by the President of the National Industrial Court, Justice Benedict Kanyip, in a suit which had 40 persons and civil society groups as claimants, validated and declared as constitutional the laws made by the various states stipulating pensions and gratuities for former governors and their deputies.

The claimants had sought the nullification of such pension laws which they said were sources of “waste of public funds”. They sued the Governors and the Houses of Assembly of the 36 states, the Attorney General of the Federation and the Revenue Mobilisation, Allocation and Fiscal Commission (RMAFC), as the first to the 74th defendants.

The claimants argued that only the 74th defendant, RMAFC, had the exclusive constitutional power to set the remuneration of such public officials as Governors and Deputy Governors, adding that their pension was part of the remuneration of public officials.

They, therefore, contended that any law stipulating pensions for such public officials already covered by the constitutional mandate of the RMAFC, ultra vires, null and void.

But in dismissing the suit, Justice Kanyip held that “the power of the RMAFC under Section 124(1) is one that relates to ‘salaries and allowances’,” adding that “pension is not mentioned at all; and the ‘salaries and allowances’ talked of are those ‘paid to the holders of the offices mentioned in this section’.”

He faulted the main grounds of the claimants’ suit to the effect that Houses of Assembly lacked the power to legislate on pensions or gratuities for former Governors and Deputy Governors.

He noted that contrary to the claim that the National Assembly and the RMAFC were the rightful bodies constitutionally charged with that responsibility of handling such matter, “the power of the RMAFC under section 124(1) relates to ‘salaries and allowances’, not pensions.”

“The word ‘remuneration’ used in paragraph 32(d) of Part I of the Third Schedule to the 1999 Constitution does not include pensions.

“While Section 124(l) donates the power to prescribe remuneration and the salaries of Governors and other public office holders subject to the amount as shall have been determined by the RMAFC, Section 124(5) did not subject the power of the House of Assembly to that of the RMAFC in granting pension or gratuity for former Governors and their deputies.”

He added that the court lacked the power to repeal a law validly passed by a legislative body.

COURT OF APPEAL PRONOUNCEMENT

The ruling of Justice Kanyip, contrasted the position of the Court of Appeal in Abuja which in its May 10, 2019 judgment described as “morally wrong” the payment of severance allowances to elected or appointed public office holders.

The court in Abuja on May 10, 2019, through its three-man panel led by Justice Abubakar Yahaya, expressed the non-binding opinion in a unanimous judgment delivered in a suit that had to do with a dispute between the Kogi State Government and some former members of the Kogi State Local Government Service Commission, who served from February 2013 to February 2017.

Justice Emmanuel Agim, who read the lead judgment of the court stated that such payment “cannot be justified in the context of our present social realities”.

He said, “The political appointees and elected public officeholders who do not work as long and as hard as career civil servants quickly get paid huge severance allowances upon leaving office, in addition to the huge wealth they acquired while holding such offices and without having been subjected to any contributory pension schemes.

“It is not morally right to pay an elected public officer or a political appointee pension and gratuity or severance allowance for holding such an office for three to eight years as the case may be. It cannot be justified in the context the present social realities; it amounts to gross social injustice.”

But while validating the ex-governors’ pension laws made by the various Houses of Assembly in his judgment of January 22, 2020, Justice Kanyip, described the Court of Appeal’s decision as an “admonition”.

He added that “the key reason for the decision of the Court of Appeal was that the letters of appointment of the political office holders in issue did not stipulate their entitlement to such payment; and that they did not produce any law or any document or instrument that entitles them to the payment they seek.”

Justice Kanyip, who awarded N400,000 cost against the 40 claimants, also ruled that Justice Amadi’s conclusion “was arrived at without a consideration of Section 4(3) of the Constitution itself.”

THE INJUSTICE GOVERNORS, DEPUTY GOVERNORS AND OTHER POLITICAL OFFICEHOLDERS PENSION LAWS ARE METING TO STATE WORKERS AND PENSIONERS.

It has been difficult for workers, pensioners and the general public to understand why Governors who served their states for eight (8) years, with most of them amassing stupendous wealth gotten through dubious means as the Economic and Financial Crimes Commission (EFCC) cases against some of them have shown, should believe that their services along with those of of their deputies as well as speakers and deputy speakers of their ever cooperative State Houses of Assemblies were more meritorious, thereby guaranteeing them better rest after “labour” than employees of the same State and Local Governments, who put in between twenty (20) to thirty five (35) years of services. Some of these Governors’ have turned Abuja the seat of the Federal Government, to their safe haven. They can be found in the hallow chamber of the Senate of the National Assembly or superintending as Ministers in Federal Ministries.

Justice Oguntoyinbo’s judgment read in part: “I have considered SERAP’s arguments that it is concerned about the attendant consequences that are manifesting on the public workers and pensioners of the states who have been refused salaries and pensions running into several months on the excuse of non-availability of state resources to pay them. SERAP has also argued that there is need to recover such public funds collected by former governors.”

WHO HAS THE RESPONSIBILITY TO REDRESS THE ISSUE?

Nothing so far exposes the greed, avarice, self-centeredness and negative oneness of our political ruling class as the issue of the pension rights of former Governors, Deputy Governors and other political office holders. There has been a conspiratorial silence on the part of state actors who have responsibility to redress the injustice the laws passed by the State Houses of Assembly are meting out to workers, pensioners and taxpayers.

AT THE FEDERAL LEVEL.

It was widely reported in the media that in the SERAP’s case, Justice Oguntoyinbo said: “The question that comes to mind is: who should approach the Court where a particular law is not in the best interest of Nigeria as a country or National interest? Who should approach the Court where a particular law is detrimental to the interest of the country? Who should institute actions in court for the purpose of recovering public funds collected?

In answering the questions, Justice Oguntoyinbo was also reported to have said: “In my humble view, the Attorney General should be interested in the legality or validity of any law in Nigeria and how such laws affect or will affect Nigerians, being the Chief Law Officer of the Federation.”

According to reports, Justice Oguntoyinbo adjourned the suit to the 3rd of February 2020 for hearing on report of compliance with the court orders/judgment by the Federal Government.

AT THE STATES LEVEL

The actions so far taken by the Zamfara and Kwara states Governors and State Houses of Assemblies clearly shows who have responsibly to redress the matter.

In 2019 Zamfara State House of Assembly invalidated the Pension law for former governors and other ex-public officers in Zamfara State, which provided for the upkeep of ex-governors to the tune of N700 million annually. The state has produced three former governors since 1999. While assenting to the new law prohibiting former Governors, Deputy Governors, Speakers and their deputies from taking mega pension and other allowances, Governor Mohammed Matawalle regretted that although the former Governor, Abdulaziz Yari had left behind pension liabilities of about N10 billion apart from other liabilities such as promotion benefits, and workers annual increments, he still had the guts to request the State Government to pay him N120 million annually. He further stated that the former Governor was seeking N10 million monthly as pension, two vehicles from the State Government, which are replaceable every four years, free medical treatment for the former Governor and his immediate family and 30 days vacation in and outside Nigeria as well as a five bedroom house in any place of the Governors choice. The law assented to by the Governor, ended similar largesse to former Deputy Governor, Speakers and deputy Speakers.

Governor AbdulRhaman AbdulRazag of Kwara State, on Tuesday January 26th 2021 signed into law a Bill cancelling payment of pension and other largess to former Governors and Deputy Governors of the State. The law was passed in 2011 under the administration of former Governor Bukola Saraki.

The Lagos State Governor, Babajide Sanwo-Olu said he was going to stop payment of pension to his predecessors and former Deputy Governors of the State. He was quoted to have said this while presenting his 2021 Appropriation Bill to the StateHouse of Assembly. Lagos State blazed the trail at the tail end of the eight (8) years tenure of former Governor Bola Ahmed Tinubu. It is important to state here, without any fear of contradictions that so far, Lagos State remains the flagship of the Contributory Pension Scheme (CPS) in Nigeria even doing better than the Federal Government. The State enacted a law on CPS IN 2007; amended the some sections of the Principal law in 2019; established Pension Bureau; registered employees with PFAs; regularly remitting 10% employer and 8% employee pension contributions; conducted actuarial valuation; funding accrued pension rights. It recently opened retirement benefits bond redemption fund account with two Pension Fund Administration (PFA) for State and local government workers; and valid Group Life Insurance Policy for workers.

CONCLUSION

Nobody should be left in doubt that some former Governors have not been fair to workers, pensioners and taxpayers in the States they ruled as Governors. The laws they got enacted at the tail end of their tenures as Governors’ without addressing the issue of pension for workers of the state exposes them as being inconsiderate, selfish and lacking in fair play, equity and natural justice. Unfortunately, those who took over from them, whose responsibilities it is to redress the injustice by repealing the laws, either lack the courage/ political will or are looking at the other side because they are future beneficiaries. They should know that the matter is not rested. The eyes of workers, pensioners and taxpayers are on States that have the laws in place. The states include Lagos, Bauchi, Rivers, Awka Ibom, Sokoto, Gombe, Yobe, Abia, Osun, EDO, Oyo, Imo, Delta, Kano, Jigawa, Niger, Bayelsa, Katsina, IMO, Borno, Anambra, Plateau and Ebonyi.

There are states I refer to as Pension “Red States”. Sixteen years down the line of pension reforms in the country, these seven states have not moved beyond the Bill level in the implementation of pension reform in their states. They are Awka Ibom, Bauchi, Borno, Cross River, Katsina, Kwara, Plateau and Yobe.

Ivor Takor, mni Esq.

Director, Centre For Pension Rights Advocacy