Court Saves 21 States Billions, Orders AGF to Recover Pension from Ex-Govs

1
Abubakar Malami
Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN),
  • Akpabio, Amaechi, Shettima, Goje, 10 others affected
  • Fashola, Sylva, Aregbesola yet to draw benefits

Yemi Ajayi in Lagos and Alex Enumah in Abuja

For 21 states with pension laws stipulating post-office benefits running into billions of naira for their former governors and deputies, it was a sigh of relief wednesday as the Federal High Court, sitting in Lagos ordered the Attorney-General of the Federation (AGF) and Minister of Justice, Mr. Abubakar Malami, to recover all funds paid as pension to erstwhile state chief executives, who are also serving in the National Assembly or as ministers.

The court, presided over by Justice Oluremi Oguntoyinbo, while delivering judgment in a suit filed by the Socio-Economic Rights and Accountability Project (SERAP), seeking an order of mandamus to compel the Attorney General of the Federation to file action to challenge states’ pension laws for former governors and recover public funds collected by them in the public interest, also ordered the AGF to challenge the legality of states’ pension laws permitting former governors and other ex-public officials to collect such pensions.

A total of 21 states had at various times promulgated pension laws allocating huge benefits to their former governors despite public objection. They are Lagos, Akwa Ibom; Edo; Delta; Kano; Gombe; Yobe; Borno; Bauchi; Abia; Imo; Bayelsa; Oyo; Osun; Kwara; Ondo; Ebonyi; Rivers; Niger; Kogi; and Katsina.

Immediately affected by the order are five ministers in the cabinet of President Muhammadu Buhari and nine senators.
The ministers are Mr. Babatunde Fashola (Lagos, Housing and Urban Development), Senator Godswill Akpabio (Akwa Ibom, Niger Delta), Hon. Chibuike Amaechi (Rivers, Transportation), Mr. Rauf Aregbesola (Osun, Interior) and Chief Timipre Sylva (Bayelsa, State Petroleum).

The senators caught by the judgment are Orji Uzor-Kalu and Theodore Orji (Abia), Kassim Shettima (Borno), Sam Egwu (Ebonyi), Danjuma Goje (Gombe) Rochas Okorocha (Imo), Ibrahim Shekarau and Kabiru Gaya(Kano) and Ibrahim Geidam (Yobe).

Although it was not clear at press time, how many of the ministers and senators affected by the judgement had started drawing the benefits as a couple of them just exited from office in May, Fashola, Sylva and Aregbesola had explained in the past that they were not drawing any post-office benefits from their state’s coffers.

Theodore Orji also issued an immediate rebuttal last night, saying he had refrained from enjoying any financial benefit from Abia State since he left office in 2015.

Generally, the pension laws differ from state to state with some of them prescribing 100 per cent of the basic salaries of the incumbents as entitlements of their predecessors.

However, many of them make provision for generous welfare packages for the former governors.
For example, the Akwa Ibom State pension law, enacted in 1998, provides free medical treatment, with no cap for expenses, for ex-governors, their spouses, ex-deputy governors and their spouses. However, the law was later amended to cap the medical fees at N100 million for a former governor and spouse and N30 million for a former deputy governor and spouse.

Both former governors and their deputies are also entitled to 100 per cent of their annual basic salary as well as one house not below 5-bedroom building in either Abuja or Akwa Ibom for the former governor and 500 per cent of annual basic salary for the deputy.

Like Akwa Ibom State, a former governor and deputy in Lagos are entitled to 100 per cent of the basic salary of the incumbents. However, the state pension law, passed in 2007, has a more generous welfare package than any other states.
It has provision for six new cars every three years for a former governor as well as houses in Lagos and the Federal Capital Territory (FCT).

Also, a former governor and his immediate family are entitled to free medical with no cap and 300 per cent of annual basic salary every two years as furniture allowance.

A similar law in Rivers State, which was passed in 2012, prescribes that a former governor is entitled to one house anywhere in Nigeria and three new cars every four years as well as 100 per cent of annual basic salaries of the incumbents for a former governor and former deputy. A former governor also gets three cars every four years and two cars for a former deputy at the same period.

The Gombe State version titled “Executive Pension Law, 2008,” provided a monthly salary for life for all former governors and deputy governors, at the rate equivalent to their salary when they were in office, among others.
In the judgment, Justice Oguntoyinbo disagreed with the argument of the AGF that the states’ laws were duly passed and 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,” she said.

The judge also said: “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.”

She adjourned the suit to February 3, 2020 for hearing on report of compliance with the court orders/judgment by the federal government.

She ruled: “I resolve this issue against the Attorney General, in favour of SERAP. I hold that the motion on notice for mandamus dated 6th February 2018 and filed on February 7, 2018 has merit. It is, therefore, granted in the terms sought.

“In other words, the 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.

“I take judicial notice of the essence of the creation of SERAP. I believe that SERAP has the locus standi to bring this suit. More so, this is a constitutional matter. In constitutional matters, the requirement of locus standi becomes unnecessary to a great extent as it may merely impede judicial function. This issue is, therefore, resolved against the Attorney General, in favour of SERAP.”

The judgment is coming on the heels of the invalidated 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 annually.
The state has produced three former governors since 1999.

SERAP had in July 2017 requested Malami to urgently institute appropriate legal action 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 seek full recovery of public funds from those involved.”

Lawyers Disagree over Judgment

Senior Advocates of Nigeria yesterday expressed divergent views on the judgment of the Federal High Court in Lagos ordering the federal government to recover the pensions collected by former governors now serving as ministers and members of the National Assembly.

The two senior lawyers who spoke with THISDAY were Chief Mike Ozekhome and Mr. Ahmed Raji.
While Ozekhome said it was a welcome relief, Raji raised certain posers that he felt must first be resolved to get a proper position on the issue.

Ozekhome stated that all the allowances received by the former governors must be recovered because they are daily fleecing the country and their states.

He said the judgment would sanitise the heavily fouled and putrid political environment.
The senior lawyer stated the judgment has opened up new vistas and re-jigged the weak moral fabric with which politicians’ garments of public service is sewn.

“They behave as if they are God’s gift to mankind. These humongous and heartless severance allowances, pensions and gratuities are running into billions of naira,” he said.

He called on state Houses of Assembly to emulate the Zamfara State House of Assembly and Governor Bello Matawalle by repealing their pension laws, describing them as obnoxious.

But in his reaction Raji raised certain posers that he felt must first be resolved to get a proper position on the issue, first among which is the issue of fair hearing.

Raji sought to know if the affected persons were made parties in the suit.
Secondly, he asked if the monies paid to the beneficiaries were in line with an extant law.

He also wondered whether the AGF has powers to recover monies on behalf of the states.
“Were the affected persons, parties to the case and were they heard? If they were not heard can the judgment be enforced against them?” He asked.

He further wondered if the AGF could recover money on behalf of any state.

“If such payment were made pursuant to an existing law did the judge nullify those laws or directed the various state Houses of Assembly to revoke or amend or cancel the laws.”

He cited the case of Zamfara State where he said the state assembly had already repealed a law that placed past governors on pension and other allowances.

While noting that Nigeria currently runs a federal system of government, Raji asked if the AGF has what it takes to carry out the order of the court.