Viewpoint

October 10, 2020

THE NORTHERNISATION OF PENCOM:A Constitutional Breach?

Pencom, Pension

By Dr. Law Mefor

Although, the Senate Minority Leader, Enyinnaya Abaribe, rose to reject the President Muhammadu Buhari’s nomination of Mrs. Aisha Dahir-Umar, for a substantive five-year term as Director-General (DG) of the National Pension Commission, PenCom, after serving in acting capacity for almost four years, as a flagrant breach of the provisions of Section 20 (1) and Section 21(1) and (2) of the Pension Reform Act (PRA) 2014, the Senate President, Ahmed Lawan, overruled Abaribe.

That Section 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”. This means that the replacement for the former DG, Chinelo Anohu-Amazu, who was illegally removed before the expiration of her first tenure, must come from the South East, not the North East. But Lawan insisted that as the presiding officer, he was the sole interpreter of the laws in the Senate and that any petitions challenging the President’s action should be sent to the Senate Committee on Establishment and Public Service.

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Those, who have followed Lawan’s politics and idiosyncrasies, his ethno-sectional and religious hard lines, are not surprised. 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, he also upon his emergence as Senate President, jettisoned alleged promise to a South West Senator and installed his personal aide, Ahmed Kadi Amshi, who is also from his Bade LGA in Yobe State as NASC Chairman. Meanwhile, the last Chairman, Dr. Adamu Fika, hails from the same Yobe. Again, only northerners (Aliyu Dogondaji and Ishaya Akau) have headed NASC since inception.

Meanwhile, those behind the atrocious abuse of the Constitution and pension law are already on a media overdrive. 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 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.”

In other words, 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, would have elapsed in October 2019 if she had remained in office and 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.

They equally argue that Section 171(2) of the 1999 Constitution (as amended) empowers the President to hire and fire at will, any head of MDAs. Therefore, based on Section 1 (3) of the Constitution, PRA 2014 is inferior, hence null and void to the extent of its inconsistency with the Constitution.

This argument is not tenable. The only tenable argument is that the tenure of the previous PenCom Exco has ran out. Full stop. It is damn too reckless to argue that the President could 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, set up the National Assembly with the primary role of lawmaking and equally empowers the President to sign passed bills into Acts of Parliament, one of which is now PRA 2014. The Constitution, in all its majesty, therefore cannot be reduced to a forum-shopping center to service the whims and fancies of a greedy few. The Presidency and Dahir-Umar’s spin doctor should stop playing kalo-kalo with the grundnorm of the land.

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 that other sections do not exist. Is it not the same 1999 Constitution that contains the Oath for the Office of President wherein Buhari swore to “strive to preserve the Fundamental Objectives and Directive Principles of State Policy contained in the Constitution of the Federal Republic of Nigeria” and to “to do right to all manner of people, according to law, without fear or favour, affection or ill-will”?

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 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.

So, agreed that the tenure of the former PenCom DG, Anohu-Amazu, who has since been poached by the African Development Bank as senior director and manages multi-billion dollars investment that dwarfs PenCom assets, has now expired based on pension law; agreed that Buhari reserved the power based on PRA 2014 to appoint a replacement, has Mr President abided by his oath of office to deal fairly with every section of Nigeria? Has he dealt fairly with South the South East in the composition of his government or in his handling of PenCom leadership?

Obviously, the presidency deliberately left PenCom rudderless and in abeyance for almost four years with Dahir-Umar as Acting DG to allow Anohu-Amazu’s tenure to run out so they appoint Dahir-Umar as a substantive DG. To achieve that, Funsho Doherty (South West), who was initially appointed DG by Yemi Osibanjo in his capacity as Acting President was dumped in the dustbin. What happened to that list forwarded by Osibanjo? Certainly, this is an obscene manipulation of the laws for a self-serving and nepotistic motive!

Those, who pretend to have forgotten the colours of justice, need be reminded that M.K Ahmad from Gombe State was never part of the Presidential Committee on Pension Reform set up by the Chief Olusegun Obasanjo administration, Obasanjo brought him in as pioneer PenCom DG, while he only appointed a fellow Egba man (Fola Adeola), who was the Chairman of that Committee and engine room of the reform, as Board Chairman. Goodluck Jonathan had qualified people in the Otuoke, but he reappointed M.K Ahmad for a second term; and when he appointed as DG, Chinelo Anohu-Amazu (South East), who also served on Adeola Presidential Committee, he appointed Adamu Muazu (Bauchi, North East), the Board Chairman. But in Buhari’s case, not only is Anohu-Amazu not qualified to serve out a single tenure or another South Easterner appointed to serve out her tenure, he also appointed the DG/CEO (Dahir-Umar, North East) as her successor and Board Chairman (Oyindamola Oni) from North Central. Buhari even appointed both Chairman and Secretary of the Federal Character Commission from the North.

The other key question is: Does PRA 2014 permit the sack of an entire PenCom Exco? It doesn’t. 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 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, he also plunged the agency into an abyss.

Meanwhile, we haven’t yet delved into the fact of whether Dahir-Umar is a ‘fit and proper’ person for this job, given the tales emanating from the Commission where she has held with impunity, cocooned in the assurance that her Northern extraction, the SGF and Adamawa brother (Boss Mustapha), will protect her. That is a story for another day. For today, Aisha Dahir-Umar’s nomination is patently unconstitutional, unjust, morally reprehensible, and cannot stand.

Mefor is an Abuja based Forensic/Social Psychologist and Journalist