There is no gain saying the fact that the current constitutional amendment exercise being undertaken by the National Assembly would naturally attract the attention and keen interest of Nigerians in view of the importance of that document as the sine qua non of our social contract as a nation. One major area of such exercise that has attracted and is still attracting attention, is the Bill No. 3 on Devolution of powers, which among other things seeks to ensure that the Central Government cedes certain powers to the States.
When, therefore, the Devolution of Powers Bill proposed certain amendments introducing the subject of pensions under the Concurrent Legislative List, one was compelled, as a stakeholder in the pension industry, to interrogate the appropriateness and motive behind the proposal. This interrogation became necessary especially against the backdrop of the existence of provisions on the subject in the subsisting 1999 Constitution as well as the fact that there arecurrently in the public domain, discussions on legislative activities on proposals for reversal of certain aspects of the pension reform embarked upon by Nigeria since 2004.
A natural starting point for an objective analysis on this subject is an in-depth evaluation of the adequacy of the existing provisions on pensions under the 1999 Constitution (as amended). Indeed, a discerning reviewer of the current provisions would unavoidably draw a conclusion that the subject of pensions has amply been addressed under the 1999 Constitution of the Federal Republic of Nigeria (as amended). It is addressed both as an enforceable right accruing to certain categories of employees and also as a persuasive requirement under Chapter 2 of the 1999 Constitution, dealing with Fundamental Objectives and Directive Principles of State Policy, which Governments at all levels and tiers, are encouraged to observe and apply its provisions for the benefit of all citizens.
Firstly, the 1999 Constitution provides under Section 16(2)(d) that the State should strive to provide for the citizens a number of social security benefits, including “old age care and pensions”. Consequently, organs of Governments at all levels (Federal, States and Local Governments) as well as all public authorities are expected to strive to provide these benefits for all citizens regardless of whether they work under the public or private sectors, formal or informal sectors, or do not work at all. However, one must hasten to indicate that the provision of Section 16 of the 1999 Constitution is only persuasive and not enforceable, having fallen under Chapter 2 of the 1999 Constitution dealing with the Fundamental Objectives and Directive Principles of State Policy.
Thus, in what would appear to be a deliberate statement, the 1999 Constitution under Sections 173 and 210 and in similar wordings, unequivocally elevat
A similar provision was made for the public service of States under Section 210 of the 1999 Constitution.
Indeed, the 1999 Constitution apparently proceeded to reinforce the provision of Section 173 to provide under Item 44 of the Exclusive List, Part 1 of the Second Schedule to enable the National Assembly to make laws on “pensions, gratuities and other-like benefits payable out of the Consolidated Revenue Fund or any other public funds of the Federation”. These constitutio
Similar powers are being exercised by the respective State Houses of Assemblypursuant to the provision of Section 210 of the 1999 Constitution and other provisions conferring the powers of appropriation of funds for the States to their respective legislatures.
Perhaps, it would be apt to determine the beneficiaries of the pension rights protected under Sections 173 and 210 of the 1999 Constitution. In accomplishing this, recourse must be had to Section 318 of the 1999 Constitution, which among other things, defines the terms “public service of the Federation” and ‘public service of the State’. Since space may not permit a reproduction of both provisions, we are constrained to provide below, only the definition of “public service of the federation”, hoping that the reader will avail himself the definition of the other term from primary source.
The constitutional definition of ‘public service of the federation’ appears to include every employee of the Federal Government of Nigeria, regardless of whether he or she works in the civil service, national assembly service, judicial service, military service, intelligence services, police service, paramilitary service, and indeed employment in any of the Federal Government Paratatals, Extra-ministerial Departments and Agencies. Thus, Section 318 of the 1999 Constitution defines ‘public service of the federation’ as “service of the Federation in any capacity in respect of the Government of the Federation, and includes service as:
In an apparent desire to insulate both the federal and state judiciaries from legislative and executive arbitrariness on issues of pensions, thereby securing their independence, S
The foregoing, we believe, has amply demonstrated the enormous attention given by our 1999 Constitution (as amended) to the subject of pensions, especially considering the fact that the constitution is supposed to be a concise document that addresses issues in a general nature. Detailed prescriptions on issues, including pensions, are normally left to statutes enacted by the National Assembly and State Houses of Assembly. It is against the backdrop of this understanding that one sees the unsuitability of the proposal for the introduction of additional provision on pension in the Bill No. 3 on the devolution of powers, which is being considered by the National Assembly in the ongoing constitutional amendment exercise.
It is appropriate at this juncture to reproduce the proposed amendment on pensions in the Bill No. 3, in order for the reader to clearly see its needlessness. It provides as follows:
“Pensions:
(1). The National Assembly may make laws for the federation or any part thereof with respect to –
(i) the regulation of matters relating to pension and gratuity of federalemployees, persons in the public service of the federation,employees of federal statutory institutions and parastatals and other persons subject to federal regulation including employees ofincorporated companies regulated
by federal enactments;
(ii) setting of standards for management of pension matters throughout the
federation in respect of workers whether in private or publicemployment;
(iii) making laws for the regulation of pension matters in relation to persons in military service, the police force and other paramilitary and security agencies in the federation.
(2). The House of Assembly may subject to paragraph 1 hereto make laws relating to the regulation of matters on pension and gratuity of state employees, persons in the civil service of the state, employees of state institutions and parastatals, employees of local governments within the state and other persons subject to state regulation including employees ofbusiness enterprises resident within the state and subject to state regulation.
A brief but critical analysis of the foregoing provisions of the Bill No. 3 on Devolution of Powers will unavoidably lead to the following conclusions: