Beyond the symbolism of the law

court-gavelPresident Goodluck Jonathan on Tuesday finalized a piece of legislation that promises to come down hard on pension thieves in the country. His media spokesman, Dr. Reuben Abati, writing on his Twitter handle, announced that the President had signed the Pension Reform Bill 2014, passed by the Senate and House of Representatives, the two chambers of the National Assembly.

Specifically, the new legislation collapses into one pension law amendments to the 2004 Act. These are the Pension Reform (Amendment) Act 2011 which exempts the personnel of the military and security agencies from the Contributory Pension Scheme (CPS) as well as the Universities (Miscellaneous) Provisions Act 2012, which reviewed the retirement age and benefits of university professors. It also coopts into the CPS private firms that have up to three people in their employ – something the old law did not allow.

On penalties for the theft of retired workers’ pension benefits, the new law provides a 10-year jail term or a fine three times the amount stolen or both. “Operators who mismanage pension fund will be liable on conviction to not less than 10 years imprisonment or fine of an amount equal to three-times the amount so misappropriated or diverted or both imprisonment and fine”, an accompanying document from the Pensions Commission (PenCom) explains.

It adds that the new piece of legislation is necessary because “there are currently more sophisticated modes of diversion of pension assets, such as diversion and/or non-disclosure of interests and commissions accruable to pension fund assets, which were not addressed by the PRA 2004. Consequently, the Pension Reform Act 2014 has created new offences and provided for stiffer penalties that will serve as deterrence against mismanagement or diversion of pension funds assets under any guise.

Nothing illustrates the inadequacy of the old law to punish pension thieves better than the January 2013 decision of a judge of an Abuja high court, Justice Abubakar Talba, in a case involving a director in the Police Pension Office, Mr. John Yusuf and other persons, charged with the theft of N27.2 billion. Yusuf admitted taking N2 billion for himself.However, in a decision that surprised even the accused, Justice Talba handed down a mere two-year imprisonment or a fine of N750,000 which the self-confessed thief promptly paid in the court premises. Besides, he agreed to forfeit a number of houses in Abuja and Gombe to the government and a cash refund of N325 million.

It is often said that the problem of Nigeria is not the absence of appropriate legislation to punish corrupt public servants but a lack of political will on the part of those government officials who should take action. As one expert on Nigerian political economy commented, “the laws on paper against bribery, corruption, and conflict of interest are reasonably good in principle, but they have huge weaknesses in enforcement that must be repaired….”

Justice Talba’s argument was that the punishment he pronounced was what the law prescribed. But there was the moral decision he was powered to make but he failed. On the part of the Economic and Financial Crimes Commission (EFCC) that brought the indictment, why it chose to prosecute on the basis of outdated legislation when it had options that would have punished the culprit more severely was inexplicable.

Our position, therefore, is that for as long as it is officials of the government that bring charges against their colleagues suspected of stealing pension funds, nothing will change in spite of the new law. In this case, it is PenCom, “subject to the fiat of the Attorney General of the Federation, that is to institute criminal proceedings” against suspected thieves.

We support the view that what is needed is “a system of horizontal accountability that is vigorous, comprehensive, independent, and interlocking”, and that “a critical, indispensable condition for successful enforcement is transparency”. Simply put, this means appointing independent minded and strong-willed personalities to head those government agencies empowered to fight corruption in high places such as the EFCC and ICPC. People who will deal out justice without looking over their shoulders.

 

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