By Ivo Takor, mni Esq.

Nigeria carried out a comprehensive pension reform in 2004 with the enactment of Pension Reform Act (PRA) 2004, which established the Contributory Pension Scheme (CPS). Prior to the pension reform, the Pension Act 1990 was of universal application to all employees of Public Services of the Federation, States and Local Governments. However, the law was repealed by Section 99(1)(a) of PRA 2004 and again by Section 117(2) a) of PRA 2014. These repeals, left employees of States and Local Governments without laws to protect their pension rights. This is because both PRAs 2004 was applicable only to the Federal Public Service and the private sector. The same goes for PRA 2014. Two years into the coming into force of the PRA 2004 and the establishment of the CPS, no state government had enacted a law to replace the Repealed Pension Act 1990 to protected the pension rights of its workers as provided for in the Constitution. Worried by this situation, in 2006, the National Pension Commission (PenCom) established under Section 14(1) of PRA 2004 to among other things, regulate, supervise and ensure the effective administration of pension matters and retirement benefits in Nigeria, approached the National Council of States on the issue, and presented a draft Bill to the Council, for considered and adoption, to guide the states in fashioning out their pension laws.

The Council decided that states should adopt the CPS for employees of states and local governments. The Council further decided that state governments should submit draft Bills, similar to the draft Bill presented by PenCom, to their Houses of Assembly for enactment into laws.

Information provided by PenCom in her Second Quarter 2022 Report states that as at June 2022, twenty five (25) states have enacted laws on Contributory Pension Scheme (CPS). They are Lagos, FCT, Benue, Kebbi, Niger, Rivers, Ogun, Bayelsa, Kogi, Anambra, Abia, Taraba, Imo, Sokoto, Adamawa, Ebonyi, Nasarawa, Enugu and Oyo. Five (5) states have enacted laws on Contributory Defined Benefits Scheme (CDBS). They are Jigawa, Kano, Yobe, Gombe and Zamfara. This leaves eight (8) states, namely Kwara, Plateau, Cross River, Borno, Awka Ibom, Bauchi, Katsina and Yobe without any pension law for the states’ public servants since pension reform was carried out in the country in 2004. I will be referring to these states as the “red states”.

The ‘Red States’

Eighteen years down the line of pension reforms in the country, these eight states have not moved beyond the bill level in enacting pension laws for employees of their States public service. The fact below speak for themselves.

Kwara: Kwara State presented Bill on CPS before the State House of Assembly in 2016 and at today the State is still at the Bill level. Bukola Saraki ruled for two terms of eight years – 29th May 2003 to 29th May 2011. He installed Abdulfatah Ahmed, who also ruled for two terms of eight years – 29th May, 2011 to 29th May 2019. The incumbent Governor, Abdulrazaq Abdulraham became governor of the state with effect from 29th May 2019. Kwara State has no pension law to protect the pension rights of employees of the public service of the State. It is on record that in 2010, Kwara State enacted a law for the payment of outrageous pension to governors and deputy governors of the State.

Akwa Ibom: Akwa Ibom State has not moved from the Bill level. Victor Attah held sway for eight years as the Governor of the state from 29th May, 1999 to 29th May, 2007. Godswill Akpabio succeeded him and spent eight years from 29th May 2007 to 29th May, 2015. Udoh Emmanuel, the incumbent, is on his second tenure having been installed by Akpabio on 29th May, 2015. However, before his exit in 2015, Akpabio guided the State Assembly to enact an outrageous pension law for the benefit of those who have served the State as governors and deputy governors.

Plateau: Plateau State drafted a a Bill on CPS in 2016 . The draft Bill has been in the State House of Assembly since then. Joshua Dariye was Governor of the State from 29th May, 1999 to 18th May, 2004; Chris Alli came in as Interim Administrator of the state from 18th May, 2004 to 18th November, 2004; Joshua Dariye returned as Governor on 18th November, 2004 and left Office on 13th November, 2006; Micheal Boatman: 13th November, 2006 to 27th April, 2007; Joshua Dariye resurrection ted from 27April, 2007 to 29th May, 2007. He was succeeded by Jonah Jang: 29th May, 2007 to 29th May2015. The current helmsman is Simon Lalong: 29th May, 2015 – incumbent.

Cross River: Cross River drafted a Bill on CPS in 2012 and the state remains at Bill level to date. Donald Duke was Governor from 29th May, 1999 to 29th May, 2007. He handed over the baton to Liyel Imoke was at the helms of affairs in the state from 29th May, 2007 to 29th May 2015. The current Governor, Benedict Ayade moved into the Government House on 29th May, 2015 and remains in control.

Bauchi: Bauchi drafted a Bill on Contributory Defined Benefits Scheme (CDBS) in 2015 and went to sleep on the matter. Ahmad Adamu Muazu was Governor of the state from 29th May, 1999 to 29th May, 2007. He handed over power to Malam Isa Yuguda, who ruled the state from 29th May, 2007 to 29th May, 2015 before handing over the baton to A. Abubaka who was in control 29th May, 2015 to 29th May, 2019. The incumbent, Bala Mohammed came into Office on 29th May, 2019.

Borno: Borno state drafted a Bill on CPS in 2008, when Ali Modu Sherrif who came into Office in 29th May, 2003 was at the helmsman. He left on 29th May, 2011, handing over to Kashim Shettima on 29th May, 2011. Shettima left office on 29th May, 2019, paving the way for the incumbent Baba Gani Zulum.

Katsina: Umaru Musa Yar’Adua who became President of Nigeria, was Governor of the state from 29th May, 1999 – 29th May, 2007. Ibrahim Shema took over from him and was in office from 29th May, 2007 – 2015. In 2017, the incumbent Governor, Amino Bello Masari who came into office on 29th May, 2015 supervised the drafting of a Bill on CDBS and then decided that the law is not a priority so he has ignored the Bill and allowed it as an archival document at the State House of Assembly.

Yobe: The state is without a Bill. Abubaka Abba Ibrahim was the Governor of the state from 29th May, 1999 – 29th May, 2007. He handed over to Maman Bello Ali on 29th May, 2007 and left office on 27th January, 2009. He also handed over to Ibrahim Gaidam on 27th January, 2009 who ruled the state up to 29th May, 2019. The incumbent Governor, Mai Mala Buni came on board on 29th May, 2019.

The implications of the actions and inactions of the Governors of these “red states” are both legal and moral.

Legal Implications

Payment of pension to a retired employee, especially and employee of either the public service of the Federation, state or local government is part of the employee’s contract of employment. Employment in any of the public services in Nigeria is covered by statutory flavour that is by law. A contract is a legally enforceable agreement between two parties. In the instant case, between the employer and employee, that creates, defines, and governs mutual rights and obligations. An employer is required by law to give an employee written statement of his/her particulars of employment containing certain key pieces of information that are set in statute. Section 7(1) of the Labour Act CAP 198 Laws of the Federation of Nigeria 2004 provides that “Not later than three months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying…….”. It therefore goes that an employer must give an employee details of any terms and conditions relating to pensions and pensions schemes. Often this information is put into the employment contract. The employment contract may include these details by reference to another document, like the Pension Reform Act 2014 for Public Service of the Federation, the Federal Capital Territory and affected Private Sector employers, Section 7(3) of Labour Act CAP 198. This is a common approach taken by employers.

The Federal Republic of Nigeria 1999 Constitution (as amended) guarantees the right to pension for employees of state governments. Section 210 (1) of the Constitution provides that “subject to the provisions of subsection (2) of this section, the right of a person in the public service of the state to receive pension or gratuity shall be regulated by law”. Subsection (2) provides that “any benefits to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law including code of conduct”.

Section 14(1)of the Constitution provides that “The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice. Subsection (2)(b) provides that “security and welfare of the people shall be the primary purpose of government”. Section 17(3)(f) of the Constitution provides that “children; young persons and the aged are protected against any exploitation whatsoever, and against moral and material neglect”. The non justiciable nature of the provisions of Chapter II of the Constitution is noted. However, the welfare of states public servants, with regards to their salaries and pensions is not gratuitous. They are issues imbedded in their employment contracts; guaranteed in extant Labour laws and the Constitution.

Governors of the “red states” past and present, governed and continue to govern their states in blatant disregard to and in the breach of the contractual relationship between them as employers and employees of the state; extant Labour laws and the provisions of the Constitution in matters affecting the pension of public servants of the states.

Moral Implication

The actions these past and present governors of the “red states” boarder also on immorality. Moral refers to what societies sanction as right and acceptable. Morality describe the particular values of specific group at a point in time. The particular group one is narrowing down to at this point in time is the Nigeria Governors Forum in particular and the political class in general.

The actions of the governors of the “red states”, put to question mark as to the importance and relevance of the regular meetings of the Nigeria Governors Forum. It is assumed that one of the objectives of these meetings is for good governance, which also helps in the practicing of peer review. Peer review is the evaluation of the work by one or more people with similar competence as the producers of work (peers). It functions as a form of self-regulation by qualified members of the profession within relevant field. Peer reviews are used to maintain quality standards, improve performance and provided credibility.

It will be erroneous for one to think or believe that there is no peer review among the governors. I submit that there is. The difference between us, the ruled and them, the rulers is that our values and what we regard as high moral standards and theirs are different.

First there is a class difference between the ruled and the rulers in Nigeria. The ruled are proletarians. The proletariat is the social class of wage-earners, those members of the society whose only possession of significant economic value is their labour power. On the other hand, Nigerian governors are members of the Nigerian predatory political ruling class. They see themselves as and behave like aristocrats; patricians. Privileged class; high society; Lords.

It is this aristocratic class mentality that has been motivating Nigerian governors generally, to believe that the services they rendered to their states for a period of eight (8) years is more meritorious than the twenty five (25) to thirty five (35) years service of public servants. In office, they and members of their families have imbibed a free everything mentality. Free accommodation, food, drinks, water, electricity, transportation, medical tourism, holidays abroad, you name it. It is this parasitic mentality that majority of them want to continue in their life time in and out of office by the enactment of Pension Laws for Governors and Deputy Governors, hiding behind Section 124(5) of the Constitution. The section provides that “Provision 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 had held office as Governor or Deputy Governor and was not removed from I office as a result of impeachment; and any pension granted by virtue of any provision made in pursuant of this subsection shall be a charge upon the Consolidated Revenue Fund of the state”.

The framers of the Constitution when inserting Section124(5) in the Constitution, did not take into consideration the fact that the principles of separation of power in the Constitution will be scorned. They never dreamed that a day will come when State Houses of Assembly will become “departments” in the offices of State Governors. They never expected that Executive Bills will be passed within an hour, without legislative scrutiny. Executive Bills go to States Houses of Assembly only for endorsements. They also did not take into consideration the fact that aristocratic governance will become our form of governance. If only they had envisaged that pension will be given a different meaning. Pension to the Nigeria predatory aristocratic political ruling class means bogus terminal salary, including houses, bullet proof vehicles that are to be replaced at short intervals, retinue of domestic staff, security details, personal assistants and provision for medical tourism.

The Way Forward

There have been judicial pronouncements on the issue of pension for former Governors, their deputies and other political office holders. That of cause is an issue that may be discussed another day. The question is, faced with the blatant disregard and breach of employment contracts states entered into with employees of state governments; breach of the provisions of extant Labour laws as well as the provisions of the Constitution by these Lords in Government Houses and the obvious weakness of the proletariats in the States, what then is the way forward.

The only hope for these employees lies in the hands of trade unions in the public sector and the two Labour Centers. These workers belong to Unions and the Unions are all affiliates of either the Nigeria Labour Congress (NLC) or the Trade Union Congress (TUC). It is also time for retired employees and their unions approach the National Industrial Court for judicial pronouncements as it seems the nation no longer has shared national values and elected officials believe they are above the law.

A handy text for not only lawyers, arbitrators, and judges, but also as major reference material for industry players including architects, builders, civil and structural engineers, quantity surveyors, and project managers, among others.

Written By Ewuwuni Onnoghen-Theophilus (Mrs.), LL.M, MCIArb.