AKEEM NAFIU writes that Lawyers at the weekend took a swipe at the nation’s Justice Minister and Attorney-General of the Federation, Abubakar Malami (SAN) for not acting on a court’s order directing him to institute legal action against the legality of states’ pension laws. To the lawyers, the AGF’s noncompliance with the court’s directive on pension law is nothing but a violation of rule of law and due process
Some senior lawyers have condemned the failure of the Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN) to act on an order of Justice Oluremi Oguntoyibo of a Federal High Court in Lagos, directing him to initiate an action to challenge the legality of states’ pension laws more than eleven months after the directive was handed down by the judge.
The lawyers said the AGF’s inaction in the absence of an appeal against the court’s order was not only disrespectful to the rule of law but also a dangerous signal in modern society.
Justice Oguntoyinbo had on 4th December, 2019 ordered the AGF to immediately institute legal action aimed at recovering all pensions collected by former governors now serving as ministers and members of the National Assembly. The AGF’s suit according to the judge must also challenge the legality of states’ pension laws permitting former governors and other ex-public officials to collect pensions.
The orders were contained in a judgement delivered by the judge in an application filed by a rights organization, the Socio- Economic Rights and Accountability Project (SERAP) for an ‘order of mandamus’ against the AGF. In the suit marked, FHC/L/ CS/1497/2017, SERAP urged the court to compel the AGF to file action to challenge states’ pension laws for former governors and recover public funds collected by them in the public interest.
The organization dragged the AGF to court following his refusal to act on its Freedom of Information (FOI) request to institute action on the pensions being received by the former state executives.
However, in his preliminary objection to the suit, the AGF, among other points, contended that he was constrained to institute any action because laws duly passed by states cannot be challenged. But in her judgement on the case, Justice Oguntoyibo faulted AGF’s claim that laws passed by states cannot be challenged, saying he is expected to approach the court where a particular law is seen as not been in the best interest of the country.
The judge held that the AGF 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.
“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.
“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 in action to protect a public right or enforce the performance of a 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 counteraffidavit against 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 resolved this issue against the Attorney General, in favour 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.
“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 judge held. AGF’s failed promise Ironically, the AGF had in a letter dated 24th February, 2020, to SERAP expressed his readiness to comply with the court’s order.
In the letter, the AGF asked the organization to furnish him with the full list of former governors and ministers that have received and/or receiving double pay and life pensions. The AGF’s letter was a response to an earlier one sent by SERAP in the aftermath of the judgement delivered by Justice Oguntoyinbo.
The letter with reference number MJ/LIT/ABJ/CMC/661/793, signed on behalf of the AGF by Anne C. Akwiwu (Mrs), Director Civil Litigation and Public Law Department, reads: “Kindly refer to your letter dated 6th December, 2019.
I am writing to inform your esteemed organization to furnish me with the full list of the former governors and ministers which are affected by the judgement by Justice Oluremi Oguntoyinbo, in order to enhance and ensure compliance with the ruling of the Honourable Court. Please, treat with utmost urgency”.
Responding, SERAP’s Deputy Director, Kolawole Oluwadare, while thanking the AGF for the request said any further delay in the enforcement of the judgement will continue to undermine the authority and integrity of the judiciary.
He added that immediate obedience to the judgement will not only be a victory for the rule, and provide an impetus for government’s anti-corruption fight but will also be a rare piece of good news for Nigerians, as it will send a powerful message to former governors and ministers that have collected and/or collecting double pay that they will be held accountable for their actions.
SERAP’s response dated 5th March, 2020, reads: “We hope this judgement will be implemented duly and promptly for the sake of integrity, accountability and proper management of public resources by state governors.
“Complying with the judgement as promised will enhance the authority, integrity and independence of the judiciary. It will be entirely consistent with government’s constitutional responsibility and international human rights and anti-corruption obligations.
“By implementing the judgement, the government of President Muhammadu Buhari will be demonstrating the important role that our judiciary can play in the fight against corruption in the country.
“Former Senate President, Dr. Bukola Saraki, stated that he stopped collecting pensions while in the Senate the moment he saw the allegation by SERAP. However, it is unclear if he has returned all the public funds collected as pension from Kwara State.
“According to public records, the following are reportedly collecting and/or have collected double emoluments and large severance benefits from their states: Rabiu Musa Kwankwaso (Kano); Kabiru Gaya (Kano); Godswill Akpabio (Akwa Ibom); Theodore Orji (Abia); Abdullahi Adamu (Nasarawa); Sam Egwu (Ebonyi); Shaaba Lafiagi (Kwara); Joshua Dariye (Plateau), and Jonah Jang (Plateau). Others include: Ahmed Sani Yarima (Zamfara); Danjuma Goje (Gombe); Bukar Abba Ibrahim (Yobe); Adamu Aliero (Kebbi); and George Akume (Benue).
“So far, Senator Chris Ngige, Minister of Labour and Employment, Babatunde Fashola, Minister of Works and Housing, Dr. Kayode Fayemi, former Minister of Mines and Steel Development, and Rotimi Amaechi, Minister of Transportation have denied ever receiving double payments and retirement benefits as former governors.
“However, we urge you to urgently ask anti-corruption agencies and other appropriate agencies of government to verify these claims, and to investigate the cases of other former governors and ministers that have collected and/or still collecting double pay and life pensions, and to publish the findings of any such investigations.
“Similarly, public records also showed that at least 22 states have passed life pensions laws allowing payment of life pensions to former governors and other ex-public officials. These states include: Akwa Ibom, Lagos, Edo, Delta, Kano, Gombe, Yobe, Borno, Bauchi, Abia, Imo, Bayelsa, Oyo, Osun, Kwara, Ondo, Ebonyi, Rivers, Niger, Kogi and Katsina.
“In your legal action, we urge you to focus on challenging the pension laws in these states while taking steps to verify the number of former governors and ministers that have collected and/or still collecting double payments and retirement benefits, the amount collected with a view to ensuring the full recovery of the public funds collected”.
However, after more than six months in which the AGF has expressed his readiness to obey the court’s order, nothing has happened.
This has drew the ire of some senior lawyers who saw his action as a slap on the authority and integrity of the judiciary.
The lawyers while speaking on the issue at the weekend noted with dismay that the AGF failed to realize that he does not even need any prompting to take steps in challenging the legality of state pension laws, because the Federal Government should be in charge of pension as it is in the exclusive list.
Speaking on the issue, a Senior Advocate of Nigeria (SAN), Chief Mike Ahamba, queried the legality of states pension laws since pension is in the exclusive list. He added that It’s for the president to do something if the AGF has failed to act on the court’s order.
He said: “As far as I know and to the best of my knowledge, pension is Federal Government’s affair. There’s nothing in the concurrent list that talk about pension. It’s in the exclusive list. So, I don’t know where the states are getting the ‘locus standi’ to come up with the pension laws to take so much money from the coffers of the state for someone who only worked for four years.
“The sad thing is that most of these states are owing workers and pensioners several months of unpaid salaries and pensions but they have never default in paying humongous allowances to former state executives and their deputies. “It is unfortunate that we like to live in breach of the law in Nigeria and as far as I know, the AGF does not even need any prompting to take steps in challenging the legality of state pension laws.
He has a constitutional duty to do so. It’s for the president to do something if the AGF has failed to act on the court’s order. “If I am in president’s shoe, I will reshuffle my cabinet and remove the AGF for disobeying court’s order, except they are telling us he is doing what the president and governors like.
The day those in authority obey the laws of the land, Nigeria will change.” A rights activist, Mr. Kabir Akingbolu, linked the AGF’s failure to act on the court’s order on negative disposition of some public servants towards making policies that will affect certain political class.
“The order made by Justice Oguntoyinbo is wonderful one but I am not surprised that same was not carried out. The Attorney General of the Federation (AGF) is a politician himself, therefore, his non-compliance with the order may not be unconnected with the negative disposition of some public servants towards making policies that will affect certain political class.
“I hold the strong view that governors are not entitled to jumbo pay in the name of pension, after leaving office because pension generally is what an employee saves monthly from his salaries. So, how much did the governors pay or contribute from their salaries to warrant the payments of such humongous pay? It is not only illegal but also sad and wicked.
“Meanwhile, the refusal of the AGF to obey such positive directive from the court is a total aberration and disrespect for the rule of law and such act is a dangerous signal in modern society, more so, that the order remains valid and subsisting”, he said.
A Lagos-based lawyer, Mr. Destiny Takon, noted that orders of court are not made in vain and it is only appropriate for the AGF to seek to comply with the order or pray the same court, to set it aside.
He said: “It is trite law that an order of court must be obeyed until set aside, except with few exceptions. My first challenge however is to consider the propriety of the order itself and to rationalize whether the difficulty or refusal of the Attorney- General of the Federation (AGF), to obey it, does not stem from the very nature or character of the order itself. “I am constrained to ask what legal interest the AGF has over a state law, when it is not in conflict with the Constitution or with a Federal law or Act.
The funds being deployed to pay those pensions are State and not Federal funds and each State of the Federation has its own Chief Law Officer in the office of the AGS (Attorney-General of the State). It is more like inviting the Federal Government to deal with an issue under the residual list or an issue exclusive to a state.
“Having x-rayed what I think has been the problem with the compliance of the AGF with the order of court under reference, I must say on a final note that orders of court are not made in vain and it is only appropriate for the AGF to seek to comply with the order or pray the same court, to set it aside for the reasons I have given above or for any other reasons.
It’s not good for the ascendancy of the rule of law in our country, that an order of court is pending and not obeyed or sought to be set aside by the AGF, who is the Chief Law Officer of the Federation”. To Mr. Wale Ogunade, the plaintiff in the suit ought to have taken steps to compel the AGF’s compliance with the court’s order.
“A court’s judgement may not be obeyed until the benefitting party takes steps to enforce it and that’s why we have the enforcement of judgement law, as well as the Sheriff and Processes Act.
It’s just like someone whose fundamental rights was infringed upon and refused to seek redress in court, he or she will just suffer for nothing. I am sure the matter was handled by a lawyer, and I believe he should know what to do to enforce the order. I don’t expect him to leave the order in limbo. “I am even surprised that it has taken this long for the order to be enforced. I have gotten judgements several times and have taken steps to enforce them.
The AGF cannot obey the order on his own volition, but had to be forced to do so. The AGF is just a messenger of the law,” Ogunade said.