I believe that large parts of the Pension Reform Act 2004 are unconstitutional. This is because certain provisions of the Act purport to include the private sector in its scope, contrary to the provisions of Item 44 of the Exclusive Legislative List of the 1999 Constitution, which limits the National Assembly to regulating only on “pensions, gratuities, retirement and other benefits payable out of the Consolidated Revenue Fund”.
To that extent, therefore, the aforesaid provisions of the Act are ultra vires the National Assembly, invalid, null and void. The obvious consequence of this is that the National Pension Commission is incompetent to continue to manage and superintend private sector pensions. Consequently, all the contributions made by the private sector to the scheme – which is the overwhelming proportion of those contributions – will now have to be uncoupled from the scheme and alternative arrangements made thereof . The solution to this unseemly state of affairs is for the National Assembly to amend the Constitution to include the private sector within the powers of the legislature in terms of pensions – or, less attractively, to amend the Pension Reform Act itself to exclude the private sector from its contributors.
Needless to say, if this is not done, the contributions of that sector to the scheme – which presently stands at trillions of naira – are in grave legal danger. They stand imperiled by a successful legal challenge to the constitutionality of the Act as aforesaid which is presently pending before the President of the National Industrial Court in suit Number NICN/ABU/43/2014 between Abubakar Sani v. National Pension Commission. Incidentally, this is coming up on April 11, 2014.
Abubakar Sani,
Abuja
