By Kunle Edun
The provisions of Sections 3(2), 6(1), Table “C” of Schedule 1 of the Delta State Governor and Deputy Governor Pension Rights and Other Benefits (Amendment Law) 2019, is a gross abuse of power of both the Legislature and the Executive (who worked in cahoot with each other) to pass the law. Most of the States in Nigeria are equally guilty of this legislative looting. Part 3 of Schedule 2 to the Law provides for the following life benefit for past Governors and Deputy Governors of Delta State, including any former Speaker of the Delta State House of Assembly who either by design or accident acted as Acting Governor, even for one day, to wit:
- An officer not below Grade Level 12 shall be the Administrative Officer.
- A personal Secretary not below Grade Level 09 who shall be selected by the former Acting Governor and paid by the State Government.
- Two armed policemen.
- One State Services Officer to be attached for life and paid by the Department of State Services.
- One vehicle to be provided by the State Government and replaced every four years, with a driver to be selected by the former Acting Governor but paid by the State Government.
- Free medical treatment within Nigeria for the former Acting Governor and his immediate family (number not limited and most likely A-class hospital).
- Treatment abroad for former acting Governor and his immediate family, where necessary at the State Government’s expense.
- A well-furnished and equipped office in any location of his choice in the State.
- One direct telephone line provided at the expense of the State Government.
These lifetime benefits are separate from the huge monetized pensions and gratuities which are mostly 200% of their remunerations and allowances. It is very visible to all that Sections 3(2), 6(1), Table “C” of Schedule 1, and Part 3 of Schedule 2 of the Delta State Governor and Deputy Governor Pension Rights and Other Benefits (Amendment Law) 2019 were made in gross violation of the salient provisions of the Constitution of the Federal Republic of Nigeria, 1999, Cap C23, LFN,2004 (hereinafter called “the Constitution”) and other enabling laws passed by the National Assembly relating to the working conditions of a Governor and Deputy Governor. Section 1(3) of the CFRN provides that “If any other law is inconsistent with provisions of the Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void”
Section 124 of the Constitution of the Federal Republic of Nigeria is the only legal authority that authorized the provision of gratuity and pension for Governors and Deputy Governors and has therefore covered the field in this area to the exclusion of any other provision that a State law may make which may conflict with the Constitutional provision. In the case of A.G. Abia v A.G.Fed (20020 6 NWLR (Pt.763) 264 held (per Kutiji, JSC) the Supreme Court re-emphasized the superiority of the Constitution when it held that“..the Constitution is the mirror upon which our actions or the actions of the National Assembly or any other public institution must be assessed. All actions must reflect the Constitution or else they will be considered as a nullity. That being the case, we have to look and see if the said Constitution has made provisions on a particular subject matter then, no other body can enlarge, alter and curtail the provisions of the Constitution”.
Now, let us do real business. Section 124 (1, 3, 4 & 5) of the Constitution (Remuneration, etc., of the Governor and certain other officers) provides
124(1) —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.
124(3) —-The remuneration and salaries payable to the holders of the said offices and their conditions of service, other than allowances, shall not be altered to their disadvantage after their appointment.
124(4)—-The offices aforesaid are the offices of Governor, Deputy Governor, Auditor General for 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.
124(5)—–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 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.
The National Salaries, Incomes and Wages Commission Act, Cap N72, LFN, 2004 with a Long Title providing that it is “An Act to establish the National Salaries, Incomes and Wages Commission to, among other things, advise the Federal and State Government on national income policy”. Section 3(p) of the said Act (functions of the Commission) gives it the responsibility to “examine the current rate of retirement benefit and recommend appropriate mechanisms for periodic review of retirement benefits”
The Revenue Mobilization, Allocation, and Fiscal Commission Act, Cap R7, LFN,2004 is the only body that is constitutionally empowered to determine the remuneration appropriate to the occupants of the offices of the Governor and Deputy Governor of a State, and this is amply supported by section 6 (d) of the Act (Powers of the Commission) which states one of its function to be the power to “determine the remuneration appropriate to the holders of the offices as specified in Parts A and B of the First Schedule to this Act”. In the First Schedule, one of the offices mentioned is the office of the Governor of a State. The powers of the Commission is better appreciated and seen in Part 1 of the Third Schedule to the Constitution Paragraph 32(d) thereof, which states, inter alia, 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 offices mentioned in sections 84 and 124 of this Constitution”
A collective reading of the foregoing provisions of the Acts cited would confirm the obvious: that on matters relating to the post “retirement” benefits of a Governor or a Deputy Governor of a State, the Constitution and Acts aforementioned are the only laws that can govern/regulate same, save as to the pension of a Governor or a Deputy Governor, which the House of Assembly of a State can pass a law in respect thereof. Section 124 (5) of the Constitution only gives the House of Assembly of a State the power to pass a Law for the grant of a pension or gratuity to a person who has held the office of a Governor or Deputy Governor and completed his term, not both pension and gratuity. Therefore, the enabling Law for the grant of a pension or gratuity or “retirement” benefits to a Governor or Deputy Governor is the Constitution, particularly section 124 thereof, and the Revenue Mobilization, Allocation, and Fiscal Commission Act. So, in this respect the Delta State Government exceeded its constitutional limit when it acted on the purported Delta State Governor and Deputy Governor Pension Rights and Other Benefits (Amendment Law), to pay past Governors of the State including Chief James Ibori, Dr. Emmanuel Uduaghan, and soon, Dr. Ifeanyi Okowa, retirement largesse to the detriment of the people of Delta State; as the entire gamut of the Delta State Governor pension law is materially inconsistent with the provisions of section 124 of the Constitution, and therefore null, ineffectual and void.
Moreso, there is nowhere in the entire gamut of Section 124 of the Constitution or any other Act of the National Assembly where an “Acting Governor” is included in the class of Governors and Deputy Governors who can be entitled to pension or gratuity after leaving office. In fact, Section 124 of the Constitution is very clear that the occupants of the aforesaid offices must have served their full term of 4 years to be entitled to such benefits. Section 3(2) of the Delta State Governor and Deputy Governor Pension Rights and Other Benefits (Amendment Law) 2019 provides that “A person who discharged the functions of Governor or Deputy Governor as Acting Governor and having not been impeached from office shall on leaving office be entitled to pension for life in addition to other benefits as stipulated in Schedule 1 Table C and Schedule 2 Part 3 to this Law”.
It is my humble opinion that the entire provisions of Sections 3(2), 6(1), Table “C” of Schedule 1, and Part 3 of Schedule 2 of the Delta State Governor and Deputy Governor Pension Rights and Other Benefits (Amendment Law) 2019 are fundamentally and grossly in conflict with the provisions of Section 124 of the Constitution. The fons et origo in the Nigerian legal system is the Nigerian Constitution. The supremacy of the Constitution is not in doubt on matters that it has expressly provided for. Section 1(1) of the Constitution which states that “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”
On the need for public officials and institutions to preserve and advance the cause of RULE OF LAW as was emphasized in the case of GOVERNOR OF EBONYI STATE & ORS V. HON. JUSTICEISUAMA (2003) FWLR [PT. 169] 1210 @ 1227-1228, the Court of Appeal while stressing the need for public officials to obey rules of law held that: “Obedience to the rule of law by all citizens but more particularly those who publicly took oath of office to protect and preserve the constitution is a desideratum to good governance and respect for the rule of law. In a democratic society, this is meant to be a norm; it is an apostasy for government to ignore the provisions of the law and the necessary rules made to regulate matters”.
The Delta State Governor and Deputy Governor Pension Rights and Other Benefits (Amendment Law) 2019” is a perpetual enslavement of the people of Delta State who have been made to suffer the consequences of bad governance and mismanagement of the public resources. It is a fact that even a Judge that serves the State for 20 years before retirement is paid peanuts. Retired civil servants are practically begging for their accumulated pensions to be paid. Some have died without ever receiving their pension and gratuity. The most insincere aspect of the anti-people law is that Section 5 of the Principal Law makes the payment of the pension and gratuity of the former Governors and Deputy Governor mandatory as a first-line charge on the revenue of the State, by providing that the “Accountant-General may when authorized, to do so by the testimonial of completion of tenure stated in section 2 of this Law, pay out of the Consolidated Revenue Fund of the State such amount of money as stipulated in the first and second schedule of the Law and in such manner as prescribed by the Law”.
The said Section 5 of the Law did not envisage a situation where an Acting Governor (a former Speaker) would be paid because it made mention of a “testimonial of completion of tenure” as Governor for 4 years, which he never possessed. We, therefore, submit that making the “pension” of an Acting Governor (who is a former Speaker of the State House) chargeable on the Delta State’s Consolidated Revenue Fund is unconstitutional and highly morally reprehensible, being inconsistent with the strict provision of section 124 of the Constitution.
The reality of this thievery and inglorious provisions would be more appreciated if Delta State were to have 5 former Acting Governors still living; the cost of their pension, gratuity, and items stated in the schedule would not be less than N1,000,000,000.00 (One Billion Naira) every year. It is a fact that the over-monetization of political offices in Nigeria accounts for the desperation by politicians to win elections by all means. The purported Delta State Governor and Deputy Governor Pension Rights and Other Benefits (Amendment Law) 2019 is a BIG THUMBS DOWN for the State government in a State where basic amenities are lacking and many companies have folded up as a result of lack of conducive business environment and infrastructural facilities but the politicians in power seem indifferent as long as they take care of themselves.
