PenCom and the Exercise of Presidential Powers

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Perspective

‎President Muhammadu Buhari’s dismissal of theChinelo Anohu-Amazu-led executive management team of the National Pension Commission is a slap in the face and undermines rule of law, writes Malachy Omale‎

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The recent appearance by the Senior Special Assistant to the President on Prosecution, Okoi Obono-Obla, on a news televison programme where he spoke on the controversial removal from office of the Director-General, DG, of the National Pension Commission (PENCOM), Mrs. Chinelo Anohu-Amazu, and other members of the management team, clearly showed why this administration has constantly come under heavy criticism and embarrassments on issues of rule of law and lopsided appointments.

Anohu-Amazu’s removal generated heated condemnation over numerous and clear contraventions of the Pension Reform Act, PRA, 2014.

Section 20(1) provides for a five-year renewable tenure. Section 21 (1)(a)-(j) lists the conditions upon whih any member of the PenCom management board will cease to be a member, such as resignation, death, bankruptcy, conviction on charges of felon, expiration of tenure, etc. Section 21(1)(J), however, states that a person shall seize to be a member of the PenCom board if “The president is satisfied that it is not in the interest of the commission or public for the person to continue in office and notifies the member in writing to that effect”. Emphasis here is “not in the interest of the commission or public” and “notifies the member in writing”.

This law also makes provisions for quality leadership for PenCom and the pension industry by subjecting the president’s choices for the positions of director general and commissioners to Senate’s confirmation in Section 19(3). The essence of Section 20(1) is to ensure that, being a statutory body, the management board enjoys security of tenure and stable leadership, irrespective of changes in political leadership in the country. It is recalled that the former DG, M.K Ahmed, from Gombe State, enjoyed two tenures running through Obasanjo, Yar’Adua, and Jonathan administrations.

In Anohu-Amazu’s circumstance, the media reported that her letter of removal partly reads: “While conveying Mr. President’s appreciation to you for your services to the nation during your tenure, may I wish you God’s guidance and best luck in your future endeavours”. At least, she was not accused of incompetence, dereliction or corruption, thus confirming the generally held view that she performed wonderfully well. She raised the pension funds from N2.9 trillion, which she met it after close to ten years of the reform, to more than N6.5 trillion in about three years.

Industry stakeholders also accredit her with driving a further reform of the sector in 2014 as well as bringing transparency, strict regulation, and innovative leadership. She also received the Trade Union Congress’ (TUC) Excellent, Visionary, and Emphatic Leader Award in 2016. TUC is a major contributor and stakeholder in the industry. So, do all these make her removal in PENCOM’S or nation’s interest? No!

Again, does termination of her tenure in the media by the Office of the Secretary to the Government of the Federation (OSGF) make her removal effective in the eyes of the law and bureaucratic traditions without a disengagement letter? The announcement came on April 13, 2017, while her letter of disengagement and directive on whom to hand over to was dated April 20, and delivered in the evening of Friday, April 21.

Curiously, operatives of the Department of State Security (DSS) were deployed to PENCOM head office, allegedly because she refused to hand over “with immediate effect” and to forestall tampering with official documents. But, Obono-Obla, a lawyer, effusively maintained that “letter or no letter, she should have handed over”. Obla also said: “She is claiming that because she has done so well she has to stay in office till thy kingdom come. Is she the first public officer in Nigeria who has done so much?”

At least, he conceded that she performed. Allegation of sit-tight is to give a dog a bad name. Her handover letter to Aisha Dahir-Umar dated Monday, April 23, as reported by the media, indicated she got her formal letter of disengagement at 5.45pm on the 21st of April 2017. The reports also showed she held an exit meeting with the Heads of Departments on Tuesday 18th April 2017, where she requested that they handover notes ahead of formal handover directives from the OSGF. Tuesday, April 18 was the first workday after her removal was announced on Thursday preceding Easter break.

Meanwhile, there is something sinister about basing her removal letter on Section 171 of the Constitution, rather than PRA 2014 establishing PENCOM. This, coupled with Obono-Obla’s utterances, portray a grand design by a cabal in the Presidency to short-circuit the Senate’s confirmation of the new PENCOM leadership and impose Aliyu Dikko in contravention of PRA 2014.

While Section 21(2) of PRA 2014 provides that “In the event of a vacancy, the president shall appoint a replacement from the geo-political zone of the immediate past member that vacated office to complete the remaining tenure”, the Presidency appointed Aliyu Dikko from Kaduna State, North West, to replace Anohu-Amazu, who is from Anambra, South East.

Section 19 (5)(a) of PRA 2014 provides that “The Chairman and members of the Board shall not own controlling shares in any Pension Fund Administrator or Pension Fund Custodian Pension Fund Custodian prior to and during their tenure of office as Chairman or members of the Board.”‎

Going by the position of Obono-Obla, Section 171 and Section 130 of the 1999 Constitution could be interpreted to mean that the president has the powers to do whatever he likes irrespective of any Act of the National Assembly. That obviously can not be the intention of the drafters of the law. There are differences between between statutory bodies like PENCOM, EFCC, etc. and bodies like extra ministerial departments such as the Ecological Fund Agency.

The fact that Obono-Obla claimed that Mrs. Anohu-Amazu had formerly spent eight years as DG, but had the pension law amended for her to remain in office as DG shows he is either ignorance of the affairs of the industry or plating politics with the issue.

However, the fact is that Anohu-Amazu was a member of the Fola Adeola-led Presidential Committee on Pension Reform set up by former President Olusegun Obasanjo. She was part of the team that wrote the Pension Reform Act 2004 and was drafted as the pioneer Commission Secretary and Legal Adviser to help see through the new system. She was appointed Acting DG in 2012 and a substantive DG in 2014, succeeding M.K Ahmad.

Obla was probably trying to stoke the fallacy that the years of experience to qualify for the position of DG of PENCOM was reduced by the National Assembly from 20 years in the 2004 Act to 15 years in the 2014 Act just to enable her to emerge as DG. It is ridiculous to think that the Pension Act was just tipexed for Anohu-Amazu in one room and that the brilliant amendments to the Act in 2014 did not pass through 109 Senators and 360 Members of the House of Representatives.

Besides, the Central Bank of Nigeria (CBN) is the engine room of Nigeria’s economy and manages assets worth multiple trillions. Yet, the CBN Act 2007 only stipulates that “The Governor and Deputy-Governors shall be persons of recognised financial experience…”. Also, the Federal Inland Revenue Service (FIRS) Act, the Nigeria Deposit Insurance Corporation (NDIC) Act, Corporate Affairs Commission Act, and other related regulators do not demand such ridiculous years of experience. In fact, even the Constitution, which pegs age qualification to be President of Nigeria at 40 years, does not require 20 years work experience if we take our 6-3-3-4 education system and youth service into account.

But assuming, but not conceding that the ridiculous years of experience was amended solely for Anohu-Amazu, the question is: amending the law to make her a DG or breaking it to make Dikko a DG, which is legitimate? Besides, her high achievements as DG have rubbished the 20 years experience.

Unfortunately, it is the Presidency that has tried to derail the industry. Apart from FG’s N285 billion unremitted statutory obligation to the Contributory Pension Scheme, CPS, it has illegally removed PENCOM leadership, forgetting that the N6.5 trillion actually belongs to over 7.4 million Nigerians who subscribed to the CPS.

The worry is that if unambiguous provisions of PRA 2014 could be so brazenly trampled upon to remove and impose leadership on PENCOM, who says the provisions governing/protecting the N6.5 trillion cannot be discarded?

The FG is arresting progress, causing trepidations, and dampening confidence in an industry that has enjoyed enormous local and international confidence and helped the economy in recession.

Meanwhile, there is something sinister about basing her removal letter on Section 171 of the Constitution, rather than PRA 2014 establishing PENCOM. This, coupled with Obono-Obla’s utterances, portray a grand design by a cabal in the Presidency to short-circuit the Senate’s confirmation of the new PENCOM leadership and impose Aliyu Dikko in contravention of PRA 2014.

Omale wrote in from Benin City‎