My attention was recently drawn to this story in the Sunday, March 1st 2020 edition of PUNCH newspaper. I happened to have front row admission via a lawyers’ WhatsApp platform, to a raging debate on the sensationalism being built around the story. Shorn of legal niceties, the conjectures and positions taken were, as much as the headlining caption in itself, from a decidedly jaundiced view.

The echoing refrain from an admittedly lofty moral prism, seemed to reflect the need to interpret the law liberally in order to checkmate states’ executives (pejoratively referred as ‘looters’) from continuing to ply their trade ad infinitum by fixing what they continue to earn even after leaving office. The obvious premise being that those likely self-serving dispositions will continue to impoverish the states even after they have courageously borne their cross, till tenure’s end.

You may be aware that in recent times, there was some considerable flak as to whether state executives and other political office holders can make laws regarding their pensions, gratuity and other post-office entitlements, using the instrumentality of the State Houses of Assembly. Emotions are far drawn into the arguments, and perhaps understandably so. It would thus seem understandable that within this context, a decision of court allowing same would be regarded with suspicion. But judging a book by its cover, or an uninformed commentary/critique often produces a misleading result.

The constitutionality of a state’s Pension’s law was the high watermark contention in Incorporated Trustees of Human Development Initiatives (HDI) & 39 ors v. Governor of Abia State & 73 ors unreported Suit No. NICN/ABJ/47/2019, the judgment of which was delivered by the President of the National Industrial Court of Nigeria (the Honourable Justice B.B Kanyip, Ph.d, FNIALS) on 23rd January 2020. The said issues were considered in greater details; and at paragraph 80, the Court held thus:

In summary, and given a global reading of the constitutional provisions, the conclusions I reach (and so hold) are:

(1) Item 44 of the Exclusive Legislative List does not relate to payment of pensions out of the Consolidated Revenue Fund of a State; only of the Federation.

(1) Item 34 of the Exclusive Legislative List cannot override sections 4(7)(c) and 124(5) of the Constitution given section 4(3) of the Constitution.

(2) By section 4(3) of the Constitution, the exclusive legislative power of the National Assembly is not absolute. Alternatively put, section 4(3) of the 1999 Constitution is not absolute. It subjects the exclusive legislative power of the National Assembly to other provisions of the Constitution; and section 124(5) is one such provision. This means that section 124(5) overrides the exclusivity of legislative power of the National Assembly.

(3) 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.

(4) While section 124(l) donates the power to prescribe remuneration and salaries of Governor 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.

(5) By section 124(5) of the 1999 Constitution, the pension or gratuity of former Governors and Deputy Governors does not need to be the same with the remuneration of a serving Governor or Deputy Governor as determined by the RMAFC.

(6) The power of the RMAFC to determine remuneration under paragraph 32(d) of Part I of the Third Schedule to the 1999 Constitution relates to “political offices holders” i.e. those still in office, not those who have left office.

(7) The exclusive legislative power of the National Assembly in terms of item 34 of the Exclusive Legislative List cannot override section 124(5) of the Constitution for the very reason that under section 4(3) of the Constitution the exclusive legislative power of the National Assembly is not absolute; and the additional reason that item 34 of the Exclusive Legislative List (as is paragraph 32 of Part I of the Third Schedule to the Constitution) coming from a Schedule cannot override a substantive provision of the Constitution. The rules of drafting teach and place greater premium on substantive sections of an Act over and above those in the Schedule.

(8) Alhaji Garba Umar v. Taraba State Government unreported Suit No. NICN/JOS/26/2016, the judgment of which was delivered on 9th December 2019 by my learned brother Amadi J, persuasive as it may be, is distinguishable and so cannot be followed in the instant case before me. Accordingly, though it is a decision by my learned brother of coordinate jurisdiction, I do not find it persuasive for all the reasons I already gave.

(9) Accordingly, all State pension laws made pursuant to section 124(5) of the 1999 Constitution are valid and constitutional. They cannot be read to be contrary to or in contravention of any subsisting legislation or the Constitution. If the draftsman of the 1999 Constitution intended to give the RMAFC powers to stipulate pension or gratuity of former Governors and former Deputy Governors, he would have clearly stated so.

The decision under reference is a LANDMARK one. For the first time, the Court, vide a masterly analysis of constitutional provisions, has clarified a knotty issue which was not considered, or addressed in the earlier decisions on the point.

Beyond the lay sentiments and moral question of having officeholders fix their own post-office entitlements, the question here turned on the constitutionality of such laws in light of the provisions of Section 32(d) of the Third Schedule; to the effect that the Revenue Mobilization Allocation and Fiscal Commission shall have the power to: “Determine the remuneration appropriate for the political office holders including the President, Vice President, Governors, Deputy Governors, Ministers, Commissioners, Special Advisers, Legislators and the holder of the offices mentioned in section 84 and 124 of this Constitution”.

To the extent that the Revenue Mobilization Allocation and Fiscal Commission, a constitutional creature, appears to be the federal body empowered to fix remunerations of political office-holders, the poser appears clearly straight-forward to answer. Any other law made by the States of the Federation will be an attempt to usurp a federal prerogative that has already covered the field on the subject matter. The other decisions so far on the matter; one at the Court of Appeal, one from the Federal High Court, and another from the self-same NICN, with respect, fell into this trapping, thus fuelling a straitjacketed approach to the interpretative exercise. No way! The States CANNOT make such laws. Sections 124(1), 124(5) and No. 44 of the Items in the Exclusive Legislative List, under Part 1, of the Second Schedule to the Constitution and section 32 (d) of the 3rd Schedule to the Constitution were called in aid.

The decision in Incorporated Trustees of Human Development Initiatives (HDI) & 39 ors v. Governor of Abia State & 73 ors goes a step further. First, the President, NICN distinguishing the cases, disagrees with the holding in these earlier decisions, holding that the States CAN, and HAVE validly made those laws. Is there thus a constitutional crisis? The Court here says ‘No’. The self-same Constitution has been called in aid. Potently, the Court refers to Section 4(3) thereof and submits that the exclusive legislative power of the National Assembly is not absolute. ‘Alternatively put, section 4(3) of the 1999 Constitution is not absolute. It subjects the exclusive legislative power of the National Assembly to other provisions of the Constitution; and section 124(5) is one such provision. This means that section 124(5) overrides the exclusivity of legislative power of the National Assembly.’

And as for Section 124 (5)? It reads ‘Provisions may be made by a Law of a House of Assembly for the grant of a pension or gratuity to or in respect of a person who has held office as Governor or Deputy Governor and was not removed from office as a result of impeachment or breach of any provision of the Constitution; and any pension or gratuity granted by virtue of any provision made in pursuance of this sub-section shall be a charge upon the Consolidated Revenue Fund of the State.’

Not done, the Court’s illuminating endeavour in this case also examined the etymology of subject matter- ‘Pensions’, in arriving at conclusion that whilst the power of the RMAFC under section 124(1) relates to “salaries and allowances”, and not “pensions’, a look at the definitions will show that pension and remuneration are not one and the same. While remuneration relates to payments made while in employment, pension relates to payments made while in retirement.’ Further, that the Constitution, having expressly mentioned and conferred ‘salaries and allowances’ of political office holders on RMAFC, all State pension laws made pursuant to section 124(5) of the 1999 Constitution are valid and constitutional.

A rich, interpretative discourse on seemingly far-flung but interrelated constitutional provisions, I commend the case to all.

A final word, though. While the morality and high emotions that have attended the court’s decision may well be a concern, unfortunately, law and morality do not always flow from same spring. The expressed intent of written laws, the Constitution of the country inclusive, which Judges are bound to make known and clear may well be a burdened cross for which the court sometimes, unfairly and undeservedly, receive the blame for many a lawmaker’s fancy which public morality frowns at. Judges, by the way, are not the lawmakers! Where laws do not represent the moral idea/conscience of the people, the people’s arena should move to the hallowed chambers of the lawmakers for a change in the law. For ‘Lawyers, CSOs to meaningfully kick as court okays jumbo pensions for ex-govs, it would require calling on the National Assembly for an amendment of the provision(s) of the Constitution under reference.