Propriety of pension for non-career civil servants, appointees

The debate on propriety, and or the legality of non-career civil servants benefiting from pensions has continued to engage attention of legal professionals circle. While some hold the opinion that it is right for political appointees to benefit from pension because they will be out of work as they age too, to others fell the legal framework for pension does not capture them, and so, will be illegal for a political appointee to be part of the scheme.

The Pension Reform Act 2014 provides that employees make regular contributions to a pool of money that is set aside to fund payments made to eligible employees after they retire.

The Act specifies that a holder of the retirement savings account, shall, upon retirement, get access to the funds in accordance with the stipulated rules, first with payment of a 25 per cent lump sum of the savings and subsequent spread during the fellow’s lifetime.

The principal aim of instituting a pension scheme is that after retirement, civil servants and relevant employees should have something to fall back on. It, therefore, means that employees are expected to make such payment to the savings account to be accessed at the time of retirement.

It is for fear of insecurity and uncertainties that the non-career civil servants and political office holders are itching to become part of the social security. Governors of some states legalised the process for themselves through their various parliaments, which of course, are widely condemned and challenged in court by vigilant non-governmental organisations, forcing some states to repeal them, while others remain recalcitrant.

The Federal High Court in Lagos, in a landmark judgment, delivered in December, 2019 ordered the Federal Government to “recover pensions collected by former governors, who were then serving as ministers and members of the National Assembly, and directed the Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN) to challenge the legality of states’ pension laws permitting former governors and other ex-public officials to collect such pensions.”

The judgment by Justice Oluremi Oguntoyinbo followed an application for an order of mandamus in suit number FHC/L/CS/1497/2017 brought by the Socio-Economic Rights and Accountability Project (SERAP).

The judgment was sequel to the outcry over pension law for former governors and other ex-public officers in Zamfara State, which provided for the upkeep of ex-governors to the tune of N700 million yearly.

In the judgment, Justice Oguntoyinbo said: “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 answering the questions, Justice Oguntoyinbo said: “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.”

Similarly, a three-man panel of the Court of Appeal, Abuja, had, on May 20, 2019, faulted the payment of severance allowance, pension or gratuity to political office holders and political appointees, insisting that the practice is morally wrong.

However, there are those who disagree with this decision. For them, since the pension scheme is contributory, all in public service could participate to ease their retirements.

They argued that this would in addition reduce the tendency to embezzle public funds owing to fear of retirement. A Senior Advocate of Nigeria (SAN), Douglas Pepe Terkura, said the Constitution has guaranteed pensions in accordance with the terms of employment, whether in the public or private sector. Political appointees for example are not entitled to pensions and there is no moral or legal basis for them enjoying pensions, he said.

Moses Onyilo, a lawyer, said a non-career public servant or appointee serves within the office of his engagement for a stated period in the instrument of appointment.

According to him, their tenure in office is usually short with jumbo salaries and other emoluments. “Ordinarily, by the Public Service Rules, they do not come within the contemplation of civil servants qualified to enjoy pensions.

“However, the Pension Reform Act, 2014 is so flexible that even a private person can make voluntary contributions to the scheme. They can derive benefit from such voluntary contributions made by them. The government needs not make any counterpart contribution on their behalf,” he stated.

Section 8 of the Pension Reform Act, 2014, he argued, provided for the category of persons exempted from the Pension Scheme and they do not include the category of persons under consideration.

Onyilo declares: “Political office holders in executive and legislative positions and their appointees, in my opinion, should not be entitled to any pension from the government. By the spirit of the law, they are not the category of people contemplated for pension benefits but this is without prejudice to their rights to make private contributions to any pension scheme and derive benefits therefrom.”

Wilson Jack, also a lawyer, argued that by the definition of pension, it is a regular payment made to persons, who were employed on pensionable employment.

According to him, political office holders are not employed in pensionable employment. Political offices, he pointed out, are not pensionable.

“Political offices are for a fixed term. At the end of the tenure, political office holders are disengaged. They are paid disengagement allowance as prescribed by an Act of the National Assembly, and Laws by the State Houses of Assembly.

“Any state law, which purports to pay pension to non-career civil servants or political appointees is stealing through the law,” he stressed.

For an Abuja-based lawyer, David Ogebe, at the federal level, there is nothing under the Pension Reform Act that entitles an appointee or a non-career civil servant to pension.

He, however, explained that such persons could take benefit under the Contributory Pension Scheme and be so entitled. His words: “In my opinion the same situation can also apply at the state level. Where however, there is nothing under the relevant state law that entitles the aforementioned persons to any pension, payment of same to those persons will be illegal.”