The Legal and Ethical Issues Concerning Public Officers Receiving Double Emoluments
Overview
Last week, Senator Gbenga Daniel (a former Governor of Ogun State ) who now represents Ogun State East Senatorial District at the newly inaugurated 10th National Assembly, was reported to have written the current Ogun State Governor, Prince Dapo Abiodun requesting that his N676,376.95 monthly pension allowance that is presently being paid to him as a former Governor of the State, be suspended. According to Senator Daniel, the suspension of his pension would be in compliance with his conscience, moral principles and ethical stance against double emoluments, which he feels that, as a serving Senator, who was hitherto a former State Governor, should not be entitled to receive.
There have been several cases over the years, where former Governors and indeed, other Public Officers who have retired from office are placed on generous life pension schemes at either State or Federal levels, only to later return to Government in some other capacity. Despite this fact, many continue to receive their pensions, allowances and other emoluments. It is estimated that as much as N40 billion has been expended, by doling out this double pay bonanza consisting of both life pensions and salaries to these former Governors and Public Officers who have made their way back into Government in some form or the other, usually as Lawmakers or Federal Ministers. This singular act by Senator Gbenga Daniel, has really set the cat among the pigeons, and shone the spotlight on many in President Bola Tinubu’s Government.
What then is the true position of the law, and how can we possibly bring to an end this immoral and unethical practice?
Firstly, where can one find the relevant State and Federal laws?
State Laws
Ever since 2007 when the first set of Governors who were elected in 1999 completed their second and final terms, the outgoing Governors through their respective Houses of Assembly passed legislation granting themselves generous severance packages and life lasting pension schemes, for their benefit and that of their Deputies. At least 22 States, including Lagos State (where the current President served two full year terms as Governor ), have reportedly passed life pension laws for their former Governors and other ex-Public Officers. Other States include Akwa Ibom; Edo; Delta; Ekiti; Kano; Gombe; Yobe; Borno; Bauchi; Abia; Imo; Bayelsa; Oyo; Osun; Kwara; Ondo; Ebonyi; Rivers; Niger; Kogi; and Katsina.
Federal Laws
Under the 1999 Constitution of the Federal Republic of Nigeria (as amended), Fifth Schedule, Part I, Code of Conduct for Public Officers provides as follows:
General
1. A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities.
2. Without prejudice to the generality of the foregoing paragraph, a public officer shall not
(a) receive or be paid the emoluments of any public office at the same time as he receives or is paid the emoluments of any other public office; or
(b) except where he is not employed on a full time basis, engage or participate in the management or running of any private business, profession or trade but nothing in this sub- paragraph shall prevent a public officer from engaging in farming.
3. The President, Vice-President, Governor, Deputy Governor, Ministers of the Government of the Federation and Commissioners of the Governments of the States, members of the National Assembly and of the Houses of Assembly of the States, and such other public officers or persons as the National Assembly may by law prescribe shall not maintain or operate a bank account in any country outside Nigeria.
4. (1) A public officer shall not, after his retirement from public service and while receiving pension from public funds, accept more than one remuneration position as chairman, director or employee of –
(a) a company owned or controlled by the government; or
(b) any public authority.
(2) a retired public servant shall not receive any other remuneration from public funds in addition to his pension and the emolument of such one remunerative position.
5. (1) Retired public officers who have held offices to which this paragraph applies are prohibited from service or employment in foreign companies or foreign enterprises.
(2) This paragraph applies to the offices of President, Vice-President, Chief Justice of Nigeria, Governor and Deputy governor of a State.
The interpretation section under the act as enshrined in the Constitution, further states that “emolument” means any salary wage, overtime or leave pay, commission, fee, bonus , gratuity, benefit, advantage ( whether or not that advantage is capable of being turned into money or money’s worth, allowance, PENSION ( emphasis mine ) or annuity paid given or granted in respect of any employment or office.
Public officer means a person holding any of the offices specified in Part 11 of Schedule to the 1999 Constitution as amended and this of course includes , The President of the Federation, the Vice President, members of all legislative houses, Governors and Deputy Governors of States, Ministers of the of the Government of the Federation and Commissioners of the Government of a State and a host of others.
It is therefore abundantly clear beyond all reasonable doubt from the above listed provisions that the 1999 Constitution as amended prohibits double emoluments for Public Officers , the definition of which is already captured above.
Case Law
The constitutional position outlined above, has been further backed and reinforced by case law. In Suit No: FHC /L/CS/1497/2017 involving the case of Socio-Economic Rights and Accountability Project (SERAP) v Attorney-General of the Federation, Hon. Justice Oluremi Oguntoyinbo (now retired) sitting in the Federal High Court Lagos, in a judgement delivered on the 26th of November, 2019 after hearing arguments centred on the Plaintiffs request for an Order of Mandamus (a Judicial Review remedy) ordered that:
“The Respondent (Attorney-General) is hereby directed to urgently institute appropriate legal actions to challenge the legality of States’ laws permitting former Governors who are now Senators and Ministers, to enjoy Governors’ emoluments while drawing normal salaries and allowances in their new political offices, and to identify those involved and seek full recovery of public funds from the former Governors”.
Justice Oguntoyinbo had in particular, ordered the Federal Government to recover life pensions collected by former Governors serving as Ministers and members of the National Assembly. In her 20 page landmark judgement, Honourable Justice Oluremi Oguntoyinbo stated that:
“The Attorney-General has argued that the States’ laws duly passed, cannot be challenged. With respect, I do not agree with this line of argument by the Attorney-General, that he cannot challenge the States’ pension laws for former Governors.”
“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 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.”
Unfortunately the Government of President Muhammadu Buhari failed to implement the judgement before leaving office, despite the valiant attempts of SERAP to have it enforced and implemented, by instituting contempt proceedings against the Government and the former Attorney General of the Federation but to no avail. Regardless of this fact the case remains a valid and subsisting Judgment of Court since it has neither been successfully appealed or set aside. In short the Government of President Bola Tinubu are bound and can be compelled by a Court of law to enforce it.
Conclusion
It’s important, in my view that this new administration led by President Bola Tinubu is not only seen to comply with the rule of law, but is also seen to be constitutionally compliant. Senator Gbenga Daniel has led by example. The President himself is a two term Governor of Lagos State, the Chief of Staff Femi Gbajabiamila is also the former Speaker of the House of Representatives, while the newly installed Senate President Godswill Akpabio, is also a former Governor and other Public Officer holder. All three men have no choice other than to support the stance taken by Senator Gbenga Daniel and also lead by example, if they want to continue to enjoy public support. They must also demonstrate that they will not be seen to deliberately flout, or breach the Constitution or disobey the order of a court. It is equally fundamental if they are to run this administration effectively, that they are not only seen to be concerned about the impending cost of living crisis and inflationary pressures that are about to engulf us as a Nation (brought about by the fuel subsidy removal and economic mismanagement of previous administrations), but that they have the will and intent to address the attendant consequences that are manifesting on the public workers and pensioners, particularly in those States that have not been paid salaries and pensions running into several months, on the excuse of non-availability of State resources to pay them.
It is surely inexcusable that while many Nigerian workers and pensioners have not been paid by State Governors for several months on end, and others struggle to make ends meet, some former Governors continue to collect double emoluments and enjoy opulent lifestyles.
Ideally, the President should set a further example, by ordering all those culpable of receiving double emoluments to return the excess payments they received over a period of time, or face the Code of Conduct Tribunal. This is revenue, that the Nation can ill-afford to give away.
Finally, it is unacceptable for successive Governments to take the courts, which are the guardians of justice in this country, for a ride. A democratic State based on the rule of law cannot exist or function, if the government routinely ignores and/or fails to abide by court orders, or gives intellectually lazy excuses often given by many of the former Attorney- Generals’ of the Federation, forgetting or ignoring the fact that if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall, to the extent of the inconsistency, be void. See Section 1(3) of the 1999 Constitution. It is sincerely hoped that the soon to be appointed Attorney-General of the Federation, will not only robustly defend the Constitution, but ensure that the rule of law is upheld at all times.
