On December 4, 2019, the Federal High Court in Lagos in a landmark judgement ordered the federal government to recover pensions collected by former governors now serving as ministers and members of the National Assembly. It also set aside February 3 to hear the level of compliance. ABDULRAHMAN ZAKARIYAU and TOPE SUNDAY take a look at the issue in this report.
In Nigeria, it is a known fact that former presidents, former governors, and other former officeholders take huge amounts of money from the federal government and their various state governments as pensions on a monthly basis. This is even while they are still serving in other capacities like ministers and members of the National Assembly. These, perhaps, are why elections into public offices in the country are usually not what one expects.
From 1999 till date, this trend has become a norm in the political life of the nation with laws backing them at federal and state levels. Another factor that has aided this is the politics of god-fatherism. So, many of these past governors have their godsons as governors so that they can continue to service their accounts every month.
The judgement
Not satisfied with the act, the Socio-Economic Rights and Accountability Project (SERAP) took the matter to court. Surprisingly, a Federal High Court in Lagos in a landmark judgement ordered the federal government to “recover pensions collected by former governors now 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.”
According to a certified true copy, the judgement delivered 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).
In the judgement, 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.”
Justice Oguntoyinbo adjourned the suit to February 3, 2020, for hearing on report of compliance with the court orders/judgment by the federal government.
Justice Oguntoyinbo’s judgement read in part: “I have considered SERAP’s arguments that it is concerned about the attendant consequences that are manifesting on the public workers and pensioners of the states who have been refused salaries and pensions running into several months on the excuse of non-availability of state resources to pay them. SERAP has also argued that there is need to recover such public funds collected by former governors.”
“It is clear from the facts of this case that SERAP had written the Attorney General to 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 seek full recovery of funds from those involved.”
He added: “SERAP has stated that since the receipt of the said letter, the Attorney General has failed, refused and/or neglected to institute appropriate legal actions to that effect. In my view, the principle of ‘demand and refusal’ has been satisfied by SERAP. I have also considered the fact that inaction to protect a public right or enforce the performance of public duty, it is the Attorney General that ought to sue.
“Having considered all the facts presented by SERAP on the need for the suit and the Counter-Affidavit against the same, I find no reason why the order of mandamus should not be granted. I am of the view that SERAP’s suit has merit.”
“I resolve this issue against the Attorney General, in favor of SERAP. I hold that the Motion of Notice for Mandamus dated 6th February 2018 and filed on 7th February 2018 has merit. It is therefore granted in the terms sought.”
Continuing, he said: “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 favor of SERAP.”
“SERAP is seeking an order of mandamus to compel the Attorney General to file an action to challenge States’ pension laws for former governors and recover public funds collected by them in the public interest since the Attorney General has failed/neglected to institute such action. That is the essence of SERAP’s suit.
“I believe the Attorney General can institute an action in a Court of law to challenge states’ pension laws for former governors. I do not see any substance in the submissions of counsel to the Attorney General on this issue. I, therefore, resolve this issue against the Attorney General, in favor of SERAP. On the whole, I find no merit in the Attorney General’s preliminary objection. It is accordingly dismissed.”
Ex-govs affected
Going by the ruling, a number of the former governors are affected among whom are former President of the Senate, Dr. Bukola Saraki ( a two-term governor of Kwara state and former senator); Godswill Akpabio (former Akwa Ibom state governor and former senator, now a minister); Rabiu Kwankwaso (former Kano state governor, former minister, former senator); Theodore Orji (former Abia state governor, now a senator) and Abdullahi Adamu (former Nasarawa state governor, now a senator).
Others include: Sam Egwu (former Ebonyi state governor, now a senator); Shaaba Lafiagi (former Kwara governor, former senator); Joshua Dariye (former Plateau state governor, former senator, now in jail over misappropriation of public funds); Jonah Jang (former Plateau state governor, former senator); Ahmed Sani Yarima (former Zamfara state governor, former senator); Danjuma Goje (former Gombe state governor, former minister, now a senator); Bukar Abba Ibrahim (former Yobe state governor, former senator), and Adamu Aliero (former Kebbi state governor, former minister, now a senator).
Others are Senator George Akume (former Benue state governor, former senator, Benue North-west, now a minister); Biodun Olujimi (former Ekiti state deputy governor, now a senator); Enyinaya Harcourt Abaribe (former Abia state deputy governor, now a senator); Rotimi Amaechi (former Rivers state governor, now a minister); Kayode Fayemi, a former minister, and now the governor of Ekiti state governor); Chris Ngige (former Anambra state governor, former senator, now a minister), and Babatunde Fashola (former Lagos state governor, now a minister).
Though, Senators Rochas Okorocha and Ibikunle Amosun are not on the SERAP’s list, they were governors of Imo and Ogun states, respectively.
However, while the case was on, the immediate past President of the Senate, and governor of Kwara state, Dr. Bukola Saraki, said he stopped receiving the pensions after hearing of SERAP’s suit, which subsequently inspired the passage of a bill by the Kwara state House of Assembly to suspend payment to former governors and their deputies. Saraki had stated at the time: “No, I’m not collecting a pension. The moment I saw that SERAP allegation, I wrote to my state to stop my pension.”
Also, the Ekiti state governor, Kayode Fayemi, Minister of Labour and Employment Chris Ngige, and Minister of Works and Housing, Babatunde Fashola, denied ever receiving payments both as former governors and current holders of public office.
However, other affected ex-governors kept mute over the development.
The level of compliance, Malami’s assurances
Barely a month that the judgement was delivered, the level of compliance, according to the checks by Blueprint Weekend, is zero. There is disquiet in some states over the issue.
Also, this medium can reliably report that the office of the Attorney-general and Minister of Justice has not instituted the legal process as ordered by the court.
A source in the Federal Ministry of Justice who asked not to be named in print for obvious reasons told this medium that before the expiration of the February 3 set for the hearing on report of compliance with the court orders/judgement by the federal government, the ministry would “do something.”
However, when contacted, the Attorney-General of the Federation and Minister of Justice, Abubakar Malami, said he would comply with the judgement in the “interest of the general public.”
Malami, who spoke through his special assistant on media, Dr. Umar Jibrilu Gwandu, said, “It is a work in progress. We are studying the judgement and we will comply in the interest of the general public.”
Why we approached court – SERAP
In a phone chat with Blueprint Weekend, the SERAP executive director, Adetokunbo Mumuni, said his organisation went to court in the interest of the country after several failed attempts to get state assemblies to reverse the law.
On the level of compliance so far, he said, “You see when the judge delivered his judgement he gave us 3rd of February to come back and report compliance. So, we have written to the Attorney- general of the federation. We have also attached a certified true copy of the judgment to the letter calling for his compliance as ordered by the court.
“So, we will see what will happen between now and the 3rd of February so that when we get to court, we will raise it before the judge.
“The case we took to court was that former governors who are serving ministers and who are also serving senators are not entitled to receive double compensation. That was what we took to court and that was what the judgment was on.”
Continuing, he said, “We have written to most states house of Assemblies, they never responded to our request. We now felt in a matter of this nature, the attorney general of the federation should be concerned with various legislators entitling the governors to such emoluments. And that was why we went to court and sued the attorney general of the federation. That he should be the concerned public officer and he should be able to act in the interest of Nigeria and Nigerians when matters like this exist.
“This judgement will be a monumental proportion once they comply with. Imagine a state that is still struggling to pay N30, 000 minimum wage! Most of the states are complaining except for Lagos and Rivers states that are self-sustaining; most of the states in Nigeria are not self-sustaining.
“How do you now commit millions and even billions of naira into payment of past emoluments? While you are still contending with payment of workers salary and others pension. So the judgement will be monumental benefits to Nigeria once it is complied with?”
A public analyst’s take
A public affairs analyst, Aminu Mohammed, said it can be stopped, but it will be difficult to recover a legally earned pension.
“Though, I am not a lawyer, when you look at that judgement you know it is in the interest of Nigerians. But the issue is this, the pension paid to these former governors who are now serving ministers and members of the National Assembly are backed by laws across the 36 states, so they were legally paid.
“They legally received pensions. In my own understanding of how things work in Nigeria, I think SERAP and other concerned Nigerians should ensure that such emoluments for former governors who are currently serving as ministers and members of National Assembly is abolished like Zamfara state did.
“For recovery that is another thing entirely. It is possible to stop it, but it will be difficult to recover a legally earned pension,” he said.
