Northernisation of PenCom: A Constitutional Breach? ~ By Law Mefor
The nomination of the Acting Director-General (DG) of the National Pension Commission, PenCom, Mrs. Aisha Dahir-Umar, by President Muhammadu Buhari for a substantive five-year term, after serving in acting capacity for almost four years, has expectedly not gone down well with a cross section of Nigerians. They not only see the effrontery as yet another gross breach of the 1999 Constitution, but also a flagrant abuse of the provisions of the Pension Reform Act (PRA) 2014. To make matters worse, the President equally nominated Oyindamola Oni (North Central) as Chairman of PenCom Board.
Lawan had hardly finished reading the letter when the Senate Minority Leader, Enyinnaya Abaribe, rose to reject the President’s nominations as a flagrant breach of the provisions of Section 20 (1) and Section 21(1) and (2) of the Pension Reform Act (PRA) 2014, which provides that “in the event of a vacancy, the President shall appoint replacement from the geo-political zone of the immediate past member that vacated office to complete the remaining tenure.” As such the replacement for the former PenCom DG, Chinelo Anohu-Amazu, who illegally removed before the expiration of her first tenure must come from the South East, not the North East.
Lawan, himself a North Easterner, however, overruled Abaribe, saying that as the presiding officer, he was the sole interpreter of the laws as far as the Senate chamber was concerned. He said instead, any petitions challenging the President’s action should be sent to the Senate Committee on Establishment and Public Service.
Meanwhile, those, who have followed Lawan’s politics and idiosyncrasies, his ostensibly ethno-sectional and religious hard lines, and his antecedents in opposing the Petroleum Industry Bill or any Southern interest would not be disappointed by his display at plenary.
For instance, he was not only fingered in the refusal of the presidency to forward the name of Senator Joy Emodi (South East) nominated by Bukola Saraki as Chairman of the National Assembly Service Commission, NASC, Lawan swiftly withdrew Emodi’s nomination upon his emergence as Senate President, and jettisoning pre campaign promises of appointing a senator from the South West, and instead installed his personal aide, Ahmed Kadi Amsi, who is also from his Bade LGA in Yobe State. It did not matter to him that the last Chairman of NASC, Dr. Adamu Fika, hails from his Yobe State, while other heads of the NASC since inception, (Aliyu Dogondaji and Ishaya Akau) were from the North as well.
Meanwhile, it is sad that those behind the atrocious abuse of the constitution and pension law are already on a media overdrive, trying to sell their bad wares, and defending the glaringly indefensible. They concede that when the President removes a member of PenCom Exco or board pursuant to Section 21(1) (h) of Pension Reform Act (PRA) 2014, Section 21 (2) requires the President to “appoint a replacement from the geopolitical zone of the immediate past member that vacated office to complete the remaining tenure”. But they argue that in the event that a board of the Commission was not reconstituted after six months after it was dissolved, as was the case with the former board, then Section 106(4) of PRA 2014 is to be followed. That Section provides: “Notwithstanding section 19(2)(a) and (c) of the Act, where a Board of the Commission is yet to be reconstituted after six months of the dissolution of the last Board, the President of the Federal Republic may appoint fit and proper persons with pension cognate experience to constitute the Board at the first instance, subject to confirmation by the Senate.”
They insist that since the appointment and Senate confirmation of Anohu-Amazu for a renewable five-year tenure in October 2014, which was short-lived by her illegal removal in 2017, her tenure, if she remained in office, would have elapsed in October 2019. They argue that since the Board was also not reconstituted six months after the dissolution of the last Board, then Section 21(2) of the PRA, which deals with the replacement of Board members, who did not complete their tenure, no longer applied. As such, Dahir-Umar is being appointed as Anohu-Amazu’s successor, not her replacement.
Their other wacky argument is that Section 171(2) of the 1999 Constitution (as amended) empowers the President to hire and fire at will, any head of Federal Government’s extra-ministerial department. In approbating and reprobating, they equally argue that based on Section 1 (3) of the Constitution, PRA 2014 is inferior to the Constitution and therefore null and void to the extent of its inconsistency with the Constitution.
I weep at the gambling attitude of the Buhari government to our constitution. Like card stackers, they exhume whichever part of the Constitution, they feel suits their purpose at every point in time and simply pretend as if the other sections do not exist. They forget that the whole essence of the constitution and legal gamut is to ensure the smooth running of our country and above all to ensure justice for all in so doing.
Is it not the same 1999 Constitution that contains the Oath for the Office of President? It read in part: “I…do solemnly swear that I will strive to preserve the Fundamental Objectives and Directive Principles of State Policy contained in the Constitution of the Federal Republic of Nigeria; …that in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will”. In line with those principle, Chapter 2 of the Constitution provides that ‘The Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice”.
Pursuant to this, Section 14 (3) of the Constitution (Federal Character Principle) clearly provides: “The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few State or from a few ethnic or other sectional groups in that Government or in any of its agencies”.
Besides, Section 42 (1) of the Constitution makes expressly outlaws any discrimination against or conferring any special privilege or advantage on any Nigerian citizen of a particular community, ethnic group, place of origin, sex, religion or political opinion in the practical application of any law in force in Nigeria or any executive or administrative action of the government. Can we honestly say that Mr. President has adhered to his oath of office in dealing with the South East in the composition of his government or in his handling of PenCom leadership?
Assuming, but without conceding that the knock-kneed arguments out in public space on the supposed position of the law by Dahir-Umar’s and Lawan’s publicists is in order, it can then be concluded that the presidency deliberately left PenCom rudderless and in abeyance for almost four years with Dahir-Umar as Acting DG to allow the effluxion of Anohu-Amazu’s tenure in order to bring in the former as a substantive DG. If it were not so, how come Funsho Doherty (South West), who was initially nominated by Vice President Yemi Osibanjo in his capacity as Acting President was dumped in the dustbin? What happened to that list? And the one before? This is an obscene manipulation of the laws of the land for a self-serving motive!
For those, who appear to have forgotten the colours of fairness and justice, let them be reminded that the even though M.K Ahmad was never part of the Presidential Committee on Pension Reform set up by the Chief Olusegun Obasanjo administration, Obasanjo brought him in as pioneer DG. He only made the Chairman and engine room of the reform, Fola Adeola (Ogun State, South West), who is his fellow Egba man, the Chairman of PenCom Board. Former President Goodluck Jonathan had qualified people in the Otuoke, but he reappointed M.K Ahmad for a second term. When he appointed as DG, Chinelo Anohu-Amazu, who also served on Adeola Presidential Committee on PenCom Reform, Jonathan appointed Adamu Muazu (Bauchi, North East), the Board Chairman. But in Buhari’s case, both the DG/CEO and Board Chairman are from the North East and North Central, respectively. This is even as the dust raised by Buhari’s symbolic appointment of both the Chairman and Secretary of the Federal Character Commission from a section of the country is yet to settle. The South, particularly the South East could go to hell for all he cares.
The other key question is: Does PRA 2014 envisage, let alone allow the sack of an entire PenCom Exco? It doesn’t. Not by any stretch of the imagination! In fact, it was one of the major defects in PRA 2004 cured by PRA 2014. PRA 2004 slammed a uniform four-year term on all PenCom Exco members. This meant that they would all come and depart at the same time, leaving no one behind for the crucial sake of institutional memory and stability. Therefore, the Chairman and DG’s term was increased to five years ensuring that there would always be a quorum for regulatory oversight. But by sacking the entire PenCom Exco in one fell swoop, Buhari not only acted ultra vires (since no portion of PRA 2014 permits such impunity), he also plunged the agency into an abyss.
Meanwhile, it is damn too reckless to rely on Section 171 to sack a PenCom Exco that was appointed relying on the PRA, for there was no conflict in the law whatsoever. Our Constitution cannot be an author of confusion, for the same Constitution, knowing that there will always be a need to make laws for the good governance of Nigeria, sets up the National Assembly with the primary role of lawmaking and equally empowers the President to sign passed bills into Acts of Parliament. And one of such Acts is the PRA 2014. The Constitution, in all its majesty, therefore cannot be reduced to a shopping center to service the whims and fancies of a greedy few.
The Presidency and Dahir-Umar’s spin doctors, should stop playing kalo-kalo with the grundnorm of the land. We have not yet delved into the fact of whether she is a ‘fit and proper’ person for this job, given the tales emanating from the Commission where she has held sway with impunity, cocooned in the assurance that her Northern extraction, including the Secretary to the Government of the Federation and her brother from Adamawa (Boss Mustapha) will protect her. That is a story for another day. The matter for today is that Aisha Dahir-Umar’s nomination is not only patently illegal, but also unjust and ethically reprehensible. It cannot and should not stand.
Dr. Law Mefor is an Abuja based Forensic/Social Psychologist and Journalist list. E-mail: email@example.com; tweet @LawMefor1.