Revisiting States’ Pension Laws For Ex-Governors And Deputy Governors In Nigeria – Legal Validity Thereof: A Call For Judicial Activism

By Christian N. Oti, Esq.

INTRODUCTION

The legislature which is one of the three arms of government is responsible mainly for the making of laws for the good governance of the federation. It is not dubitable that laws are the means whereby democratic ideals are enshrined and practiced in a democracy. Any legislation is supposed therefore to be a consequence of democratic intentions for the good of the state.

In Nigeria, the duty of law-making is shared between the National Assembly and the State Houses of Assembly. The former is empowered to make laws with regard to the items in the Exclusive list under the first schedule (part 1) and also some in the concurrent list under (part 2); whereas the latter is enjoined to make laws flowing from items in the concurrent list as well in accordance with the provisions of the constitution.

It is imperative to note at the outset that this law making duty is mandatorily subject to Section 4 Constitution of the Federal Republic of Nigeria (CFRN). It is in line with the provision of this section that we shall hinge our argument in this discourse. Many State Houses of Assembly have in effect to their legislative power enacted pension laws for the sole benefit of her past governors and deputy governors.

STATES’ PENSION LAWS FOR POLITICAL OFFICE HOLDERS

At the heart of misconceived priority, political cupidity, legislative servitude and recklessness, is the pension laws for past governors and deputy governors. Not less than twenty states have passed the State Pension law for their ex-governors and deputy governors. These states include Lagos, Ebonyi, Akwa-Ibom, Rivers, Edo, Delta, Osun, Ondo, Gombe, Zamfara, Kastina, Yobe, Kwara, Imo, Abia, Plateau, e.t.c.

The laws provide humongous benefits to these past governors and deputy governors; ranging from free real property worth up to hundreds of millions in the state capital, Abuja or any part of the world of their choice (as provided by some of the laws), free medical services for them and their immediate families, vacations, different numbers of cars depending on the state law at the stipulated intervals, personal domestic staff and other outrageous demands on the revenue of the state.

It must be emphasized that pensions are for the benefits of workers who have served a state, company or organization for a long period of time, and has by so doing have contributed to the well being and prosperity of that body. It is ideally not for political office holders, but for public and civil servants, who have been in service for thirty-five years or has attained at least the age of sixty. It is thus not a measure for the satisfaction of the avarice of politicians and their families.

For instance, in Edo state, the Pension law for the past governor and deputies introduced by the then governor of the state; Adams Oshiomhole in 2016, provides for the purchase of any property of their choice in the state capital or Abuja worth N200, 000, 000 (Two Hundred million Naira) for the governor and N100, 000, 000 (One Hundred Million Naira) for the deputy respectively. This is in addition to other perks, of which weighs heavily to the meager revenue of the state. The state struggles to make meet of capital projects, and does not confidently pay pensioners who indeed are worthy of their pensions.

THE LEGAL ARGUMENT

The National Industrial Court of Nigeria (NICN) has had caused to rule on the constitutionality of state pension laws for governors and their deputies. In the case of Incorporated Trustees of Human Development Initiatives & 39 Ors v. Governor of Abia state & 73 Ors, Unreported Suit No. NICN/ABJ/47/2019; the judgment was delivered on 23^rd January, 2020 by Justice B. B. Kanyip (now president of the NICN).

By an Originating Summon, the claimant sued for a declaration that the pension of a governor and deputy governor of a state is a remuneration of a public holder in terms of section 32(d) of the Third schedule to the 1999 constitution and “condition and welfare” in terms of item 34 of part 1 second schedule to the same constitution; and also that the state Houses of Assembly are not competent to make such laws for the pension of governors and deputy-governors, among other reliefs.

The court in its judgment held inter-alia, that pension and remuneration are not the same; that section 124(1) provides for the remuneration of political office holders as listed therein to be determined by the Revenue Mobilization Allocation and Fiscal Commission, subsection 5 of the same section clearly empowers the state houses of assembly to make laws for the pension of governors and deputy-governors. The court also held that item 44 in the exclusive list refers to the consolidated revenue of the federation and not a charge on the state consolidated fund. It may be apropos to reproduce these provisions:

Section 124(1, 4) – There shall be paid to the holders of the offices mentioned in this section such remuneration and salaries as may be prescribed by a House of Assembly, but not exceeding the amount as shall have been determined by the Revenue Mobilization Allocation and Fiscal commission.

The offices aforesaid are the offices of Governor, Deputy Governor, Auditor-General of a state and the chairman and members of the following bodies, that is to say, the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission.

Subsection 5- Provisions may be made by 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 office as a result of impeachment; and any pension granted by virtue of any provision made in pursuance of this subsection shall be a charge upon the Consolidated Revenue Fund of the state.

Item 44 of the Exclusive list in the second schedule of the constitution reads thus:

“Pensions, gratuities and other- like benefits payable out of the Consolidated Revenue Fund or any other public funds of the Federation”.

The  court also noted that the condition, safety and welfare of labour in item 34 of the exclusive list in the second schedule is not absolute as to override the powers of the Houses of Assembly to make laws in accordance with section 4(7) CFRN 1999.

In sum, the court held the pension laws for past Governors and Deputy Governors as constitutional and valid.

THE CALL FOR JUDICIAL ACTIVISM IN THIS REGARD

Despite the above decision of court, we must note that these pension laws for Governors and Deputy Governors do not accord with the principle of natural justice, equity and good conscience in many respects. Firstly, the opulent lifestyle drawn from public funds of these political office holders do not dictate in good conscience the need to further supplement same with a pension. It is equally clear to the blind and audible to the deaf, the many cases of misappropriation of funds, embezzlement and breach of trust perpetuated by these office holders while in office. It therefore does not stand justified that in addition to the huge chunk of the public treasury used by them, a pension is made to them.

In a country where the take home of workers cannot take them home; where the minimum wage of N30, 000 is a headache for many of the state government to implement, it is pathetic and irritating in the eyes of equity that those who have lived fat on the state treasury and has milked it dry should enjoy pension. It is also against good conscience that the real retirees who had dedicated hard years of service do not get their pensions as and when due. Not a few states are indebted hugely to pensioners. For crying out loud, how do any past governor, receive pension knowing that pensioners in the state are yet to be paid. This is also in the midst of a conspicuous absence of infrastructures and basic standard amenities in many of these states.

Furthermore, many of these past governors and deputy governors go on to more political offices; many are in the National Assembly and are ministers in the government of the day. This positions them to get to feed fat from both ends.  Although a federal high court sitting in Lagos in suit no: FHC/L/CS/1497/2017, brought by the Socio-Economic Rights and Accountability Project (SERAP) had mandated the Attorney General of the federation to challenge the constitutionality of the ex-governors and deputy governor who receives pensions and are in the National Assembly or as Ministers and to recover the pension, it is doubtful if this would see the light of day.

This kind of law, it is submitted is not for the good government of the state but for the personal aggrandizement of a select few. Section 4 CFRN 1999 (as amended) stipulates that the legislative power therein shall be for the peace, order and good government of the state. Can it really be said that the pension laws for ex-governors and deputy governors, is for the good government of the state?

While it is conceded that it is the discretion of the legislature to determine what laws would be for the good government of the state, it is here submitted that such power must be used judiciously. The courts are therefore imbued with power to consider laws made by the legislature to ascertain whether same is for the peace, order and good government. Anyone enthusiastic about constitutional law, will agree that the principle of checks and balance ensures that one arm of government do not derogate from the clear dictates of the constitution.

The point be stressed is that, so long as the constitution vide section 4(8) has subjected the legislative powers of the legislature to the courts, the need for judicial activism in this respect and in all other laws becomes germane. The court has the power of judicial review to examine if a law meets the requirement of the constitution for law making. The fact that a law empowers one to do a thing does not mean that same should or can be done capriciously or whimsically.

It is argued that if the courts ask intense and genuine questions, they will find a way around this law. Infact, it is submitted that the state pension law for ex-governors and deputy governors can be seen as a violation of the fundamental rights of the citizenry, particularly the aged pensioners and workers. What is the right to life without employment or the means to enjoy same? What is the right from discrimination and equality if an ex-governor or deputy gets a good largesse as pension from the state fund for holding a political office for four or maximum eight years; whereas those who served the state meritoriously for thirty five years gets peanuts as pension, and same is even difficult to receive from the government? What is the right to own property when the funds that ordinarily should get to the people to live and own property no matter how small is being disbursed to political office holders in bulks? These rights in the author’s view are breached as these states doles out outrageous benefits to these political offices as pension. You would therefore agree that what is good for the goose is good also for the gander.

CONCLUSION

Government at all level, exist for the benefit of the people, and as such it must act at all times for the interest of the people. It beats commonsense that the people through whom government derives its powers should live in penury while the supposed servants live in affluence. No greater injustice than this. Consequently, the judiciary being the last hope of the common man must not just interpret laws strictly from the letters but see through the public policy and intent of the law, while following the dictates of the said law too.

In sum, the contention is that despite the inclusion of this law making right for pensions for ex- governors and deputy governors in the constitution, the law does not meet the need for peace, order and good government which law makers ought to satisfy; and that if the courts digs deeper through judicial activism, it would find the incongruity of the law against states.

Consequently, an urgent need and call for a repeal or an amendment of same is pivotal. The “elephant” share given to these political office holders as pension is clearly not sustainable, especially as the country falls into recession repeatedly. It is even suggested that instead of a pension, gratuity may suffice adequately as the latter is payment made once and for all. Commendations must thus be given to some states which have repealed the law or are in contemplation of doing so. Zamfara state is noted to have repealed her pension law for past governors and deputy governors. Recently, Lagos state announced plans to tow this direction, and it is hoped that it will be followed through, and that other states would do likewise.