Concise summary
The five-year periodic review of civil servants’ pensions under the employment of State governments in Nigeria is essentially an unfulfilled Constitutional promise as such pensioners’ income is swallowed up by inflation in Nigeria.
We considered how the federal government of Nigeria had abandoned its similar duty under s.173(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (the “Constitution as Amended”) in our earlier commentary here.
Our commentary is limited to s.210(3) of the Constitution as Amended that promises civil servants in States across Nigeria that the respective State Governments would review pension every five years.
Indeed, a pension reduces the hardships of retirement and also serves as a reward for the retiree’s diligent service to the State Government. MARTINS & ORS V. KOLAWOLE (2011) LPELR-4475.
Pension Reform Act 2014 and the Constitution as Amended
Section 210 (1) of the Constitution as Amended guarantees and subjects the right of a person in the public service of a State to receive pension and gratuity to any law specifically enacted to regulate the rights to pension or gratuity.
Under sub-section 2 of s. 210 of the Constitution as Amended, the State civil servants’ pension shall not be withheld or altered to his disadvantage except as specified under any law.
Impliedly, s.210(3) requires State Governments, through the respective civil service commission and pensions board, to review pensions every five years or together with the State civil service salary review, whichever happens first.
Given the provisions of s.1(a) and s.2(1) of the Pension Reform Act (PRA) 2014, the PRA 2014 regulates pensions of each State’s pensions board in Nigeria as well.
Pencom (National Pension Commission), established under the PRA 2014 and by s. 18, PRA 2014, enjoys supervisory and regulatory functions over any pensions board of a State Government in Nigeria.
Yet, in respectful deference to the allocation of powers under the 1999 Constitution and the specific requirements of s.210 of the Constitution as Amended, the PRA 2014 only established the Federal Government Pension Transition Administration Director (PTAD) and the Federal Capital Territory PTAD.
Every State Government in Nigeria has enacted a pension (reform) law. We know that pension boards continue to operate in some States in Nigeria instead of a PTAD.
State governments are nearly caving in under the burden of recurrent and capital expenses, including decades-old pensions and gratuity backlogs together with civil servants’ salaries.
Judicial Attitude to State Pension Law and Civil Servants’ Pension
In IMO STATE SECONDARY EDUCATION MANAGEMENT BOARD & ORS v. DURU C. I & ORS. (2017) LPELR-42462, the Court of Appeal relied on the Supreme Court of Nigeria’s decision in ABDULLAHI v MILITARY ADMINISTRATOR & ORS (2009) 15 NWLR (PT. 115) 417, that the pensions law that applied to a civil servant that retired from Kaduna State Civil Service is the Kaduna State Pension and Gratuities Law 1991 and not the Pensions Reform Act 2004.
The learned justices of the Court of Appeal held that the Imo State Pension Reform Law of 2008 and the Imo State Public Service Rules applied to the Respondents.
We submit that the PRA 2014 and the Constitution as Amended are superior to any State’s Pensions law. Conflicts between State’s pension law and the Constitution as Amended must be resolved in favor of the Constitution as Amended or the PRA 2015.
Periodic Review of Pensions: Unfulfilled Assurance
The Court of Appeal in AJAO V. PERMANENT SECRETARY, MINISTRY OF ECONOMIC PLANNING BUDGET CIVIL SERVICE PENSIONS OFFICE & ANOR (2016) LPELR-41407 noted that pension is not merely a statutory duty but the fulfillment of a constitutional promise.
So that the relevant laws or rules made under s.210 are for the effective execution of the constitutional mandate entrusted to the State Government.
Periodic review of pension does not depend on the discretion of the State Governments. It is regulated by s.210(3) of the Constitution as Amended.
A State Government’s failure to duty to pay pensions is a breach of a Constitutional duty. Paying pension does not depend on the government’s discretion but is governed by the rules and the Constitution. Anyone entitled to pensions can claim it as a matter of right.
In our earlier commentary here, we cited the Supreme Court of Nigeria’s decision in Central Bank of Nigeria V. AMAO & others (2010) 15 NWLR (Pt.1219) 271 that “it is important for every organization in this country, including the CBN, to wear a human face in its treatment of the people, particularly the senior citizens, because it will be anybody’s turn tomorrow to be a senior citizen.”
The Supreme Court noted that “we must reexamine our attitude towards the senior citizens of this country so as not to make them regret their sacrifice for the nation in whatever capacity. The respondents need not be put to the expenses of litigating this matter in the first place, let alone to the Supreme Court”.
Therefore, pensions to retirees of any State Civil Service Commission are a fixed income for five years only. State Governments must review pensions every five years, and pensioners or their legal representatives can safely enforce this right at any time.
The limitation law does not apply to unconstitutional actions. Non-applicability of limitation law means that retirees may enforce their rights to periodic review of pensions at any time.
Conclusion
Pencom, which bears supervisory oversight functions on any State Government’s pensions board, should ensure that State Government fulfills this Constitutional promise of periodic review of the pensions.
Every other non-interest group, including ELLAN and NBA-SPIDEL, should ensure that retirees from the State civil service commission enjoy this kindred Constitutional promise of periodic review of pension under s.210(3) of the Constitution as Amended.
