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Opinion: Controversial Bill before ENHA; There has been an existing Guber Pension Law before Gov. Ugwuanyi came into Office. It is a private member Bill, so there is no basis for the vituperation against the Governor

By Johnpaul Anih, 14/3/2021

The propriety of the Enugu State Gubernatorial Pension Bill, No.1, 2021 should be tested in accordance to the law and not by the emotions and sentiments of the citizens or the whims and caprices of the lawmakers.

First, I am unable to understand the sudden outburst or ferocious onslaught against the lawmakers of the 7th Assembly. I say so because there is as we speak an extant Enugu State Gubernatorial Pensions Law with provisions almost in similar terms with what is being proposed in the Bill with slight variations.

Therefore, the 2021 Bill is not a new bill on the subject matter but a bill to repeal and re-enact the extant law.

Now, on whether past Governors are entitled to pensions, we must have resort to the Constitution for an answer. The answer is definitely in the affirmative. But the big question is whether the scope being introduced by the ENHA is aligned to the constitutional provision on the matter. Section 124(5) of the 1999 Constitution as amended provides:- “Provision may be made by a Law of a House of Assembly for the grant of a Pension or Gratuity to or in respect of a person who had held office as Governor or Deputy Governor and was not removed from office as a result of impeachment; and any pension granted by virtue of any provision made in pursuance of this subsection shall be a charge upon the Consolidated Revenue Fund of the State.”

As can be seen in the above constitutional provision, the legislature may grant either pension or gratuity to a former Governor or Deputy Governor. The Constitution used the word may meaning the grant of pension or gratuity is not mandatory. Again, the Constitution used the disjunctive ‘or’ between pension and gratuity suggesting that either pension is granted or gratuity and not both.

I think the intention of the Constitution by using the permissive word ‘may’ is to enable each state legislature to reflect on its peculiarities such as the economic realities of the day.

The current outbursts seems to suggest that most of the citizens were unaware of the existence of a Pensions Law for former Governors and Deputy Governors. The basis for this uproar seems to hang on the perceived inoperability of such law on account of the weight it will bring upon the finances of the state. It is also considered that there is no justification for former Governors and Deputy Governors who are swimming in opulence to continue to draw post governance benefits from the coffers of the State. These two views represent the economic and sociological arguments on the issue. These arguments are neither here nor there as those viewpoints are rebuttable.

The points so far made are:

  1. The Constitution gives power to the House of Assembly of a State to make provisions for pension or gratuity to former Governor or Deputy Governor.
  2. The Constitution donated that power in permissive terms thus allowing the state legislature the discretion to either make or not make the law.
  3. The law is in respect of either pension or gratuity and not both.
  4. The persons entitled to the benefit of such law are the former Governor and Deputy Governor who were not removed from office by impeachment.

Now, does the extant law on Gubernatorial Pensions confine itself to the constitutional scope or it exceeds it? Also, does the new bill confine itself to the constitutional scope or exceeds it? A close scrutiny of schedule 1 of the bill reveals 9 items of benefits for the benefit of a former Governor and schedule 2 reveals 8 items for the benefit of a former Deputy Governor. The items of benefits are common to both the former Governor and Deputy Governor except that the Deputy Governor is not entitled to a Personal Assistant. The other differences are in respect of number of domestic staff and vehicles and the percentage of applicable annual basic salary and amount of monetary allowance.

The Bill No.1, 2021 exceeds the constitutional scope in all forms:

(a). The Bill in section 3 made provision for Governors and Deputy Governors who are not in contemplation of the 1999 Constitution by extending it to all former elected Governors and Deputy Governors of the old Anambra State and old Enugu State.

(b) The Bill in section 5 provided for Gratuity in addition to Pension already provided in section 3.

(c) The Bill also in section 5 provided for allowances which is not in the contemplation of the Constitution.

(d) All the items in the schedules are not in contemplation of the Constitution.

From the above analysis, the Enugu State House of Assembly Bill No. 1, 2021 fails the constitutional validity test.

The opposition to the bill on economic and sociological arguments are not strong enough. There is nothing wrong with granting Pension or Gratuity to former Governors or Deputy Governors. The only caveat should be that it should align to the scope provided in the Constitution.

One last point before I conclude is the references to the incumbent Governor as one who might likely be privy to the Bill. I think it is out of place to link the Governor to this. There has been an existing Gubernatorial Pension Law before he became Governor and which he had no hand in the enactment. The now controversial Bill is a private member Bill and not an executive Bill. Therefore, there is no basis for the vituperation against the Governor.

Our duty as concerned citizens is to engage our representatives in the House along the lines I highlighted above which is to streamline the provisions of the Bill with the Constitution of the Federal Republic of Nigeria 1999 (as amended).

Source: John Nwobodo, Esq.

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