All Posts in "Day: October 1, 2020"

Dahiru-Umar: Need for continuity in PenCom

The need for contiunity in the National Pension Commission (PenCom) is Paramount, following President Mohammadu Buhari, an ardent believer in continuity to allow Mrs. Aisha Dahiru-Umar as the Director-General of the National Pension Commission (PenCom) to finish the teats she started in the Commission

The Executive Director, Centre For Pension Right Advocacy, Ivor Takor said that the appointment of Mrs. Aisha Dahiru-Umar as the Director-General of the National Pension Commission (PenCom) pending Senate confirmation.

Takor, who was a former board member of PenCom, noted that the pension Industry looks forward to Senate’s expeditious confirmation of the appointments that will bring a new lease of life in PenCom and the industry that is emerging as the fasted growing industry in the country, creating jobs and value chain across industries within the financial sector of the economy.

He maintained that it is to the credit of the Acting Director-General of PenCom, Aisha Dahiru-Umar and members’ of the Management Team that PenCom has been able to move the pension industry forward through effective regulation and supervision of the industry; ensuring increased level of compliance by private sector employers; under their watch, small and medium enterprises are increasingly embracing the CPS; expanding the coverage of the CPS through the Micro Pension Plan, which as at June 2020, witnessed 51,974 informal sector workers enrolling into the CPS, contributing N42.1 million; under their watch, RSA registration grew to 9, 039,727 as at second quarter of 2020 growing pension assets to 11.08 trillion naira during the same period; and by ensuring that pension operators are managed by fit and proper persons, thereby ensuring that the industry continue to be insulated from fraud and maladministration thereby securing pension funds and assets.

He posited that it came as a big relief when it was announced as breaking news on Monday 29th September, 2020 that President Muhammadu Buhari has appointed a Chairman, Director General and four Commissioners for the National Pension Commission (PenCom subject to the Confirmation of the Senate, and that the names of the appointees has been forwarded to the Senate in line with Section 19 (3) of the Pension Reform Act 2014.

The Section provides that “The Chairman, Director-General and the Commissioners shall be appointed by the President subject to the confirmation by the Senate”. Section 19 (2) provides that the Board of the Commission shall consist of (a) a part-time Chairman who shall be a fit and proper person with adequate cognate experience in pension matters; (b) the Director-General of the Commission; (c) four full-time Commissioners of the Commission; (d) a representative each of the following agencies and institutions: Head of the Civil Service of the Federation; Federal Ministry of Finance; Nigeria Labour Congress; Trade Union Congress of Nigeria; Nigeria Union of Pensioners; Nigeria Employers Consultative Association; Central Bank of Nigeria; Security and Exchange Commission; Nigeria Stock Exchange; and National Insurance Commission, he added.

By the Organogram of PenCom, he said the Commissioners who together with the Director-General are members of the Executive Committee of Pencom, will be heading various departments of the Commission.

“The Board of PenCom was dissolved in 2015 or thereabout and for almost five years, the Commission has been without a Board. It has become a convention in Nigeria that once a new administration is sworn in at the Federal level, all Governing Boards of Federal Government Agencies are dissolved and reconstituted at the pleasure of the President. In the absence of the Board, PenCom has been managed by a Director-General and currently by an Acting Director-Director General,” he said.

“It is important to note that out of a Board membership of sixteen ten of them are Institutional representatives of critical stakeholders in the pension industry, whose inputs are critical in the formulation and provision of general policy guidelines for the discharge of the functions of the Commission; monitoring and ensure the implementation of policies and programmes of the Commission; and carrying out such other functions as necessary or expedient to ensure the efficient performance of functions of the Commission under the Act. It wasn’t only the absence of the Board that was a setback to the work of PenCom. Pencom for the years that there was no Board, had no Executive Committee.”

“The Board of PenCom was dissolved in 2015 or thereabout and for almost five years, the Commission has been without a Board. It has become a convention in Nigeria that once a new administration is sworn in at the Federal level, all Governing Boards of Federal Government Agencies are dissolved and reconstituted at the pleasure of the President. In the absence of the Board, PenCom has been managed by a Director-General and currently by an Acting Director-Director General,” he said.

Patoma Admin by — October 1, 2020 in Pension 0
THE PROVISIONS OF THE PENSION REFORM ACT 2014 GOVERNING APPOINTMENTS TO THE BOARD OF THE NATIONAL PENSION COMMISSION

 The relevant statutory provisions governing the appointment to are the following:
i. Section 19(3) of the PRA 2014 provides that the Chairman, the Director General and Commissioners shall be appointed by the President subject to confirmation by the Senate.
ii. Sec 19(4) of the PRA 2014 requires that each of the appointees represents each of the six geopolitical zones of Nigeria.
iii. Section 19(5) of the PRA 2014 provides, among other things, that the Chairman and members of the Board of the Commission shall not own controlling shares in any PFA or PFC prior to and during their tenure of office.
iv. Sec. 21(1)(h) of the PRA 2014 provides that a person would cease to be member of board if the President is satisfied that it is not in the interest of the Commission or the public for the person to continue in office.
v. Section 21(2) of the PRA 2014 provides that in the event of a vacancy in the board of the Commission, the President shall appoint a replacement from the geopolitical zone of the immediate past member that vacated office to complete the remaining tenure.
vi. Section 106(4) of the PRA 2014 provides that notwithstanding section 19(2)(a) and 26(2)&(4) 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.
vii. S. 171 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) vests in Mr. President the power to appoint persons to hold or act in certain offices and to remove such persons. These offices include heads of all Federal Government extra-ministerial departments, howsoever designated.
Section 21(2) of the PRA 2014 provides that “In the event of a vacancy, the President shall appoint a replacement from the geopolitical zone of the immediate past member that vacated office to complete the remaining tenure”. The PRA 2014 did not define what constitutes ‘vacancy’, a situation that created ambiguity as to the exact occasion when S. 21(2) of the PRA 2014 becomes operational. However, it will appear from the context that the subsection contemplates the ceazation of membership of the board through any of the scenarios listed in S. 21(1)(a)-(h) of the PRA 2014, which include resignation, death, bankruptcy, conviction of a felony, removal by the President, etc.
The argument therefore is that Mrs. Amazu’s replacement as DG of PenCom must come from the Southeast zone to complete here remaining term. However, contrary to this submission , a careful review of the relevant provisions of the PRA 2014 would lead to the following conclusions:
a) A reading of both subsections (1) & (2) of Section 21 of the PRA 2014 indicates that they consistently use singular phrases such as ‘a member’; ‘a vacancy’; ‘a replacement’; ‘immediate past member that vacated office’ etc. According, it is submitted that the correct interpretation of S. 21(2) of the PRA 2014 is to hold that it addresses only cases of occasional vacancies created by the exit of individual members of the board of PenCom as enumerated in subsection (1) of the same section, rather than where the whole board is dissolved or all executive management are removed by Mr. President.
b)  S. 21(2) of the PRA 2014 seeks to ensure compliance with the provision of S. 19(4) of the Act, which requires that at all times, the Chairman, Director General and four Commissioners of PenCom shall each represent each of the six geopolitical zones of Nigeria.
c) There had been a precedent which illustrates the application of a similar provision under the defunct PRA 2004. Thus, in 2006 when the then President Obasanjo removed only the Chairman of PenCom, Mr. Fola Adeola, who was from the Southwest, his replacement came from the Southwest when late Chief Wole Adeosun was appointed to complete the term started by Mr. Fola Adeola.
d) The provision of S. 21(2) of the PRA 2014 applies not only to the office of the Director General but also the Chairman and other four Commissioners of PenCom where the respective individuals vacate office leaving others in office.
7. The new appointments to the board of PenCom could also be considered from the perspective of S. 106(4) of the PRA 2014 which provides that notwithstanding section 19(2)(a) and 26(2)&(4) 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.
It is noted that in 2015, the Federal Government dissolved the Boards of ALL Federal Parastatals including that of PenCom. Since that time, board issues of PenCom were referred to Mr. President through the Secretary to the Government of the Federation (SGF) for approval. Consequently, it our considered opinion that Mr. President has legal right under S. 106(4) of the PRA 2014 to appoint fit and proper persons with pension cognate experience to constitute the board of PenCom at the first instance. This right is absolute and is uninhibited by S. 21(2) of the PRA 2014. Thus, the argument with regards to the requirements of Sec. 21(2) of the PRA 2014 will not stand in the light of S. 106(4) of the PRA 2014 and there is no legal obligation on Mr. President to appoint anyone to complete an unspent term of office of any of the erstwhile DG and Commissioners.
Without prejudice to the foregoing submissions, we would like to draw attention to the overarching provision of S. 171(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which gives the president unfettered powers to appoint or remove head of any Federal Government extra-ministerial department, howsoever called. This includes appointments to the office of the Director General of PenCom. This constitutional power cannot be eroded by any Act of parliament in the light of the provision of S. 1(3) of the Constitution which provides that “if any other law is inconsistent with the provision of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void”
Patoma Admin by — October 1, 2020 in Pension 0