Are Ex-Governors’ Pensions Illegal and Immoral?
For over 14 years, the controversy has raged over the dispute of whether former State Governors and their Deputies are entitled to their full salaries for life as pension. Some States like Akwa Ibom, Lagos and Abia had surreptitiously passed such laws that entitled their former Governors to collect their full salaries for life, after their exit from office. The angst and recriminations which trailed this, prompted some human rights groups to go to court to challenge what many see as obnoxious, immoral and legally indefensible. These cases are still in court, and on appeal. But, the present Bill before the National Assembly, seeking to abolish these jumbo life pensions for Governors has again, given the controversy a new life. In this Cross-Fire, Chinonye Obiagwu, SAN argues stringently that ex-Governors and their Deputies are certainly not entitled to such immoral and illegal pensions. On the other hand, Dr Richard Oma Ahonaruogho, SAN counters that life pension for ex-Governors is not only legal, but that the State Houses of Assembly are constitutionally empowered to make laws to guarantee life pensions to ex-Governors. This is the Cross-Fire!
Ex-Governors’ Pensions
Are Illegal and Immoral
Governors’ Pension Laws: Illegal, Immoral, or Both?
Chinonye Obiagwu, SAN
Since 2010, Nigerian civil society has campaigned against the laws granting huge pension for life to Governors and their Deputies, in almost all the States. That year, following squabbles about the Akwa Ibom State Governors Pension Law, Nigerians were shocked that many States had secretly passed these laws, starting with Oyo State in 2004 and Lagos in 2007.
Bogus Pensions
The average pay-out for all former Governors and Deputy Governors under this scheme in each State is over N1.6 billion annually, and average of over N4.5 billion is used in each State to build and furnish the residential buildings for former Governors and Deputy Governors in the State capitals and in Abuja. Each year, therefore, Nigerian States spent over N130 billion as pension to former Governors and Deputy Governors, amounting to N46.4 trillion since 2010. Yet, Nigerian civil servants’ pensions are contributory, and their salaries are usually unpaid for months in many States. By 2015, almost all the States have similar laws, and in many States, nearly all former Governors and Deputies are still alive, drawing the bogus pension.
In most of the laws, such as Lagos, former Governors and their Deputies are entitled to pension for life at the rate of the full salary of the incumbent Governor or Deputy !Governor, in addition to the building expansive houses in the State capital and Abuja, at location of the person’s choice, free lifetime overseas medical treatment for all dependants and family members in any foreign country of the person’s choice, brand new SUV and escort vehicles every three years, up to 6 full-time pensionable domestic staff, 100% of salary as furniture allowance, 30% of salary as car maintenance allowance, 25% as administration allowance, 10% of salary entertainment allowance, etc.
Resistance & Legal Challenges
The resistance against the Governors’ Pension laws, is being mounted by civil society organisations through social action as an immoral bad governance law, and through legal action in court on the basis that the 1999 Constitution gives the Revenue Mobilisation Allocation and Fiscal Commission (RMAFC) the exclusive powers to set the ‘remuneration’ of public officers, including those of the Governors and their Deputies. Therefore, a State House of Assembly has no legislative power to make such law for pension of any public officer, beyond the amount set by the Commission.
While the legal challenges continue to rage in the courts, many NGOs working on good at the State levels continue to mobilise under the Human Rights Agenda Network (HRAN), to raise public outcry against the large pensions that the former Governors allocate to themselves.
In 2014, 75 NGOs asked the Federal High Court in Abuja to determine whether pension and out-of-office allowances of a Governor and Deputy Governor constitute “remuneration” and “condition and welfare of employment” in terms of Section 32 (d) of the 3rd Schedule to the 1999 Constitution and Item 34 of the 2nd Schedule to the 1999 Constitution respectively. Section 32(d) of the Third Schedule provides that the RMAFC shall have the power to: “determine the remuneration appropriate for political office holders including the President, Vice President, Governors, Deputy Governors, Ministers, Commissioners, Special Advisers, Legislators and the holders of the offices mentioned in Section 84 and 124 of this Constitution”.
Item 34 of the Second Schedule Part 1 provides that the National Assembly shall have the exclusive legislative power in respect of “Labour ,… Conditions, Safety and welfare of Labour”.
The key legal question was that if ‘remuneration’ includes “pension” or ‘allowances’ within the meaning of Section 32 (d) of the Third Schedule to the Constitution, then the State House of Assembly lacks the legislative power to make any pension law for the Governor and his Deputy, or any public officer named in the provision.
In 2019, after 5 years of adjournments, Justice Mohammed of the Federal High Court ruled that the suit ought to be have been filed at the National Industrial Court of Nigeria, and transferred the suit there. At the same time, a similar case was instituted by the then Attorney-General of Adamawa State challenging the legality of the Adamawa State Governors’ Pension Law passed in the previous regime of the State House of Assembly. This was the case of Mr Bala Ngilari v Adamawa State Government Suit No NICN/ABJ/356/2015. Both the NGOs case and the Adamawa case, were decided together in 2020. The President of the National Industrial Court, Kanyip J, dismissed both suits, and held that the pension and allowances of former Governors or their Deputies do not form part of their remuneration, because remuneration only covers salaries and allowances of a public officers while he is in office, while pension refers to payment made when the person is out of office. The court further held that the RMAFC’s mandate only covers remuneration of public officers while they are still in office. In other words, the pension that a public office holder is to earn upon his retirement or leaving office, is not part of the remuneration of that officer upon employment or assuming office, and thus, does not fall within the jurisdiction of RMAFC. The State Governors’ pension laws are therefore, valid, according to his Lordship, who stated, to our utter shock, as follows: “… the Claimants’ case is that the 1999 Constitution gave the 74th Defendant, that is, the Revenue Mobilisation Allocation and Fiscal Commission (RMAFC) the exclusive power to set the remuneration of Governors and Deputy Governors, and that pension is part of the remuneration of public officials. Therefore, any law especially by the State Houses of Assembly that stipulates pension of such public officials already covered by the constitutional mandate of the RMAFC is ultra vires, null and void. The question, therefore, arises whether pension is part of remuneration as the Claimants argue. We cannot answer this question, unless we first understand what ‘remuneration’ and ‘pension’ mean. The New Oxford American Dictionary defines remuneration as ‘money paid for work or a service’ and the Thesaurus gives the alternate words to be ‘payment, pay, salary, wages, earnings, fee(s), rewards, compensation, recompense, reimbursement, contingency, fee, formal emolument(s). The same Dictionary defines pension as ‘a regular payment made during a person’s retirement from an investment fund to which the person or their employer has contributed during their working life; a regular payment made by the government to people of or above the official retirement age and to some widows and disabled people’. And the Thesaurus gives the alternate words to be ‘retirement benefits, superannuation, social security, allowance, benefit, support, welfare. … the term pension is payment a person receives upon retirement, usually under pre-determined legal or contractual terms’. A global look at these definitions will show that pension and remuneration are not one and the same, as to make pension part of remuneration as argued by the Claimants. While remuneration relates to payments made while in employment, pension relates to payments made while in retirement. So, if by the 1999 Constitution the RMAFC has power to fix remuneration (without pension being specifically mentioned), it cannot be said that that power include that of fixing pension. Section 124(1) of the 1999 Constitution, which empowers the RMAFC to fix remuneration of constitutional office holders actually talks of ‘salaries and allowances’. The section provides thus: ‘There shall be paid to the holders of the offices mentioned in this section such salaries and allowances as may be prescribed by a House of Assembly but not exceeding the amount as shall have been determined by the Revenue Mobilisation Allocation and Fiscal Commission’. It must be noted that the power of RMAFC under Section 124(1) is one that relates to ‘salaries and allowances’. 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’. Section 124(4) then lists the offices including Governor and Deputy Governor (not former Governors and former Deputy Governors). It is paragraph 32(d) of Part 1 of the Third Schedule to the 1999 Constitution that mentions the word ‘remuneration’. It provides that the RMAFC shall have power to: (d) determine the remuneration appropriate for political office holders, including the President, Vice-President, Governors, Deputy Governors, Ministers, Commissioners, Special Advisers, Legislators and the holders of the offices mentioned in Sections 84 and 124 of the Constitution.’ The question that, therefore arises, is whether a Governor or Deputy Governor who left office is a holder of the office of Governor or Deputy Governor, as the case may be. The answer must be a resounding NO.”
This decision of the National Industrial Court of Nigeria, appears to have turn the interpretation of relevant terms on its head, by relying on whether the public officer is still in office and if he is no longer in office, then the remuneration mentioned in Section 124(1) does not apply to him. In other words, the court is saying that when a public officer is employed or gets into office, the pension he will receive on retirement or on leaving office is not part of the remuneration of that office. That interpretation, is with respect, overstretched.
The attention of the court in the NGO’s case was drawn to an earlier decision of the Court of Appeal of 20th May, 2019 in Appeal No CA/A/810/2017, in which the Court decried the situation where ‘despite the huge monthly perquisites of office and opulence of political office holders, and the fact that, in contrast, civil servants who are subjected to contributory pension schemes with many others are not even paid their pension, political office holders who did not work as long and hard as civil servants quickly get paid huge severance benefits upon leaving office’.
Clearly, the governance logic of huge pension and allowances to former Governors and Deputy Governors is a clear manifestation of the corrupt political practices in the country. There have been attempts to extend the Governors’ pension laws to other public officers including Legislators (as in Lagos in 2019) and to spouses of Governors and Deputy Governors (as in Taraba in 2022).
There is no basis in law and also in political morality, for a Governor or his Deputy who served for only 4 or 8 years, to receive pension that its value is more than the remuneration of the incumbent. In some States, there are so many former Governors and Deputy Governors who are still alive and therefore, entitled to the huge pension. It is worrisome how the States’ resources will be funnelled every month to this extravagance.
It is important that the courts seriously consider their roles in the Nigerian society, as truly the last hope of the common man. Where the court will validate a law or system that impoverishes the ordinary people at the detriment of the rich political office holders, who have already been living in opulence, and while in office were entitled to huge security votes, which are not accounted for, will leave office, and most time, assume other offices such as in the Senate or Ministerial appointments, and yet collect huge pension from the States, is a system that calls for the courts’ positive and fair intervention, and not for the court to use semantics to justify such impunity.
Such positive role of the court was demonstrated in the case of Alhaji Garba Umar v Taraba State Government unreported Suit No NICN/JJOS/26/2016, delivered on December 9, 2019 judgement of Amadi J (as he then was) at the National Industrial Court of Nigeria Jos division, in which the Taraba State Governors and Deputy Governors’ Pension Law 2015 was considered. The Applicant in that case, brought the action to claim entitlements under the Pension Law for being the Acting Governor of Taraba State for a short period of time. The Applicant, Alhaji Garba Umar had occupied the office of Deputy Governor, after the erstwhile Deputy Governor, Alhaji Sani Abubakar Danladi was impeached, and then became Acting Governor after the substantive Governor had an aircraft accident. But, in a challenge by the erstwhile Deputy Governor, the Supreme Court in Alhaji Sani Abubakar Danladi v Bar Nasiru Audu Dangiri & 6 others (Appeal No. SC416/2013), the judgement delivered on November 21 2014, nullified the purported impeachment of the erstwhile Deputy Governor and ordered his reinstatement as the Deputy Governor of the State, and hence, the Acting Governor, given the ailing Governor’s inability to resume work. Consequently, Alhaji Garba Umar vacated office following the said Supreme Court judgement on November 21 2014. Out of office, he then claimed at the National Industrial Court of Nigeria that by virtue of the Taraba State Governor and Deputy Governor’s Pension Law 2015, he was entitled to gratuity and other entitlements (post-tenure benefits) for being the Acting Governor. Even though in the case the legality of the Taraba State Pension law was not raised by any of the parties including the counter-claim of the State Government, his Lordship, now Justice of the Court of Appeal, raised the issue suo muto as to the legality of the State Governor and Deputy Governor’s Pension Laws. In determining the constitutional validity of the 2015 Taraba State Pension Law, his Lordship stated that ‘remuneration’ is the same as pension, or that pension of a public officer is part of his remuneration. And then given item 44 in the Exclusive Legislative list, ordinarily, the implication is that only the National Assembly has the legislative powers to make laws on matters associated with Pensions and other rewards to Public officers.
In his subsequent judgement in the NGO case referred to above, the President of the NICN, Kanyip J, tried not only to distinguish the Taraba Pension case, but to sit on appeal over the judgement of his learned brother, Amadi J. His lordship, in dismissing the decision in the Taraba Pension case as being without legal reason, taunted that “his Lordship (referring to Amadi J) would use the word ‘ordinarily’ means that his Lordship acknowledges that the National Assembly is not the only body with legislative powers to make laws on matters associated with pensions and other rewards of public officers.
Conclusion
We respectfully opine that State Houses of Assembly have no powers to legislate on any matter in the exclusive legislative list, and if under concurrent list, cannot legislate on such matter if there is already an enactment by the National Assembly. This is the principle of covering the field. Thus, even if the National Assembly and the State Houses of Assembly share the legislative powers over pensions, (which is not the case, in our view), the State Assemblies will not be permitted to legislate on the same matter, in so far as there is already a legislation by the National Assembly. This is the principle of covering the field, which has been given stamp of authority in many decisions of the Supreme Court.
It is appropriate for the State Houses of Assembly to re-consider, for purpose of repealing, the Governors and Deputy Governors’ pension laws in their States, and to save the States from the greed and avarice of these over recycled political office holders, who continue to bleed this county dry for their own personal interests and enrichment.
Chino Edmund Obiagwu, SAN, Lead Counsel, Legal Defence & Assistance Project, and Chairman, Human Rights Agenda Network
No, They’re Not!
Bill Stopping Payment of Pensions of Former Governors/ Deputies that are NASS Members
Dr Richard Oma Ahonaruogho, SAN
I find this Bill and the debates thereon at the National Assembly (NASS), as an unnecessary attempt to usurp the powers of the Houses of Assembly of the States to make laws, including the laws on pensions of former holders of the office of Governor and Deputy Governor of a State of the Federation.
Once a law exists for the payment of pensions of former holders of the office of Governor and Deputy Governor of a State of the Federation, the resources to implement that law is budgeted for by the State Government and NASS has no power to legislate thereon, or to prevent the payment under the law of the State Government.
Chapter 1, Part II of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) (hereinafter called “the Constitution”) provides for the Powers of the Federal Republic of Nigeria. Section 4, which is of interest to this discuss, deals with the legislative powers which are vested in the National Assembly for the Federation, which consists of a Senate and a House of Representatives by virtue of Section 4 (1) and in the House of Assembly of a State of the Federation, by virtue of Section 4 (6).
The National Assembly is vested with power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, to the exclusion of the Houses of Assembly of the States; and, in addition and without prejudice to the powers conferred by subsection (2) of the section, the National Assembly shall have power to make laws with respect to the following matters, namely: (a) any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to the Constitution to the extent prescribed in the second column opposite thereto; and (b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.
The Houses of Assembly of the States are vested with the power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, (a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, (b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to the Constitution to the extent prescribed in the second column opposite thereto; and if any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall, to the extent of the inconsistency, be void.
Item 44 on the Exclusive Legislative List provides for pensions, gratuities and other-like benefit payable out of the Consolidated Revenue Fund or any other public funds of the Federation. This, in my humble view, means that the National Assembly can enact laws to provide for the for pensions, gratuities and other-like benefit payable out of the Consolidated Revenue Fund or any other public funds of the Federation in respect of Federal Civil Servants and Public office holders, including members of the National Assembly, the Executive and indeed, the Judiciary.
It therefore follows, that the National Assembly cannot validly enact a law that will interfere with the powers of the House of Assembly of any State to enact its law for pensions, gratuities and other-like benefit payable out of the Revenue of a State, so as to prevent a person who was elected into any office under the Constitution at the State level from enjoying the pensions, gratuities and other-like benefit provided for in the applicable laws of the State, which that person had earned by reason of having been first elected at the State level, from subsequently enjoying salaries, benefits, entitlements and other perquisites of office by reason of a subsequent election into any office under the Constitution at the Federal level. The National Assembly does not have any such power and any such law will be a misadventure, and a State Government will be within her rights to gladly ignore any such law and or to challenge it in court.
If for example, Richard Oma Ahonaruogho, SAN was elected into the House of Assembly of Delta State and served as the Right Honourable Mr Speaker; he completed his tenure in that behalf, he will be entitled to benefit from the law for pensions, gratuities and other-like benefits payable out of the Revenue fund of Delta State applicable to the Office of Mr Speaker. Now, the same Richard Oma Ahonaruogho SAN is now elected into the Senate of the Federal Republic of Nigeria, he will in addition to receiving his earned pension from the Delta State Government, be entitled to all his salaries, benefits and entitlements together with the perquisites of office as a Senator of the Federal Republic of Nigeria!
Pensions and gratuities, are earned. Once there is no law preventing a person from aspiring to serve at more than one level of the three tiers of government – Federal, State and Local Government, any law made to interfere with earned pensions and gratuities, will not be a law validly made.
The cases of former Governors and Deputy Governors who have been elected into the National Assembly, should be no different. The electorates knew that they had served as Governors and Deputy Governors before electing them into the National Assembly, and they should not be unnecessary or unduly stigmatised.
Lastly, it must be remembered that Section 4(8) of the Constitution has expressly removed the powers of the Legislature to oust the jurisdiction of the courts or judicial tribunal from inquiring into the validity of any law passed by the National Assembly or by a House of Assembly, in the following terms –
“Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law”.
Dr Richard Oma Ahonaruogho, SAN
