How Malami advised Buhari against signing Constitution amendment on Judges retirement pensions

There are emerging revelations of how the former Attorney General of the Federation and Minister of Justice, Abubakar malami SAN, advised former President Muhammadu Buahri to decline assent to the Constitution Amendment Bill on the retirement and pension of Judaical Officers in Nigeria.
Malami highlighted that existing provisions in the constitution have made sufficient provisions for retirement and pension of judicial officers across the country. The former Minister also noted that extension of retirement age for judicial officers would lead to career stagnation in the service. He also said that the alteration would cause financial burden on the federal government. In conclusion, Malami told former President Buhari to decline assent to the Bill.
The former Attorney General of the Federation and Minister of Justice had in a three-page letter dated May 26, 2023, Ref. No: LD/BILL/3046/II, addressed to the Chief of Staff to the President, titled Re: Constitution of the Federal Republic of Nigeria, 1999 (Fifth Alteration (NO.37) BILL, 2023, asserted: “I write in reference to your letter ref. No. SH/COS/156/A/2226 dated 10th may, 2023 on the above subject, forwarding a correspondence from the Clerk of the National Assembly requesting for the president’s assent of the Constitution of the Federal Republic of Nigeria, (Fifth Alteration) (No.37) Bill, 2023.
I have critically reviewed the Bill and I wish to state as follows: ….
After his observations. former Justice Minister, Malami, in conclusion, declared: “In view of the above, it is my considered opinion that the President declines assent to the Bill as there is no justification for the huge and unexpected financial burden on the Federal government, the Bill is contrary to Government Policy on retirement age and would lead to stagnation in the career projection for Officers in the Judiciary.”
Malami full letter to the former President on the subject matter reads:
“Attorney General of the Federation dated May 26, 2023, Ref. No: LD/BILL/3046/II, addressed to the Chief of Staff to the President, titled Re: Constitution of the Federal Republic of Nigeria, 1999 (Fifth Alteration (NO.37) BILL, 2023.
“I write in reference to your letter ref. No. SH?COS/156/A/2226 dated 10th may, 2023 on the above subject, forwarding a correspondence from the Clerk of the National Assembly requesting for the president’s assent of the Constitution of the Federal Republic of Nigeria, (Fifth Alteration) (No.37) Bill, 2023.
“I have critically reviewed the Bill and I wish to state as follows:
a. the provisions of the Fifth Alteration Bill appear to be far-reaching, unduly wide and ambiguous. the Bill has made no justification for the peculiar extension of the retirement age for Judges and enlargement of the retirement benefits for all judicial officers in the Country. this create huge financial and unexpected burden on the Federal government.
b. Currently, Section 29(1) of the Constitution already provides that judicial Officers in Supreme Court and Court of Appeal shall cease to hold Office at the age of 70 years. the Section provides that: A judicial officer appointed to the Supreme Court of the Court of Appeal may retire when he attains the age of 65 years and he shall cease to hold office when he attains the age of 70 years.
c. The Fifth Alteration therefore, seeks to enlarge this provision to all Judicial Officers of the Supreme Court, including National Industrial Court, Federal High Courts, High Courts of the States and FCT, Sharia Court of Appeal and Customary Courts of Appeal.
d. This would not only lead to stagnation in career growth of judges as those currently on the bench would have to stay longer, preventing others from being elevated to higher Courts or record; it would also exponentially increase the wage bill for Judicial Officers to be borne by the Federal Government.
e. Furthermore, with regards to pension for Judicial officers, Section 291(3)(c) and (4) of the Constitution currently provides for the regulation of pensions for Judicial Officers by both the Federal and State Governments. The Section provides that: Any person who has held office as judicial officer – other than Chief Justice of Nigeria, a justice of eh Supreme Court, the President of the Court of Appeal or a Justice of the Court of Appeal who enjoy pension for life, shall be entitled to such pension and other retirement benefits as may be regulated by an Act of the National Assembly or by a Law of a House of Assembly.
f. Accordingly, the Federal government enacted the federal Judicial Officers (Administration of Pension) Act 2007, which transferred the responsibility and administration of pension of the Federal Judaical Officers from the Department of Establishment in the office of the Head of Service of the Federation to the National Judicial Council. Similarly, State Governments are responsible for the pension of Judaical Officers in the State Courts of Record.
g. These provisos are now being amended by the Fifth Alteration which now restricts the power of the Federal Government to make law with respect to judicial Officers who retire after the age of 65. Regardless of extant economic realities of the Federal Government, by virtue of the Fifth Alteration, all judges who retire after attaining 65 years of age would be entitled to payment of their salaries for life, including all allowances in addition to any other benefits to which they nay be entitled.
h. By virtue of the Constitution, the only persons entitled to payment of their last salaries for life are the President, Vice President and Justices of the Supreme Court and Court of Appeal. In the case of the latter, its only applicable if the Justices retire at or after the age of 65 and have spent not less than 15 years.
i. In addition, the proposed alteration also placed additional huge expenditure on the Federal Government by eliminating the responsibility of States to pay these altered retirement benefits.
j. I also wish to observe that in Nigeria Government Policy is for Public Servants to retire upon attaining the age of 60 years. However, special consideration was given to the Justice of the Supreme court and Court of Appeal as well as lecturers and Professors who retire at the age 65 or 70 years as the case may be. The proposed alteration extends the retirement age of judges in all above listed Superior Courts of Record and may lead to further agitation for extension of retirement age of Justices inn the Supreme Court and Court of Appeal.
k. Finally, the proposed alteration to the constitution is ambiguous and creates confusion. On the one hand, the Bill places the retirement benefits of the affected Judicial Officers under the exclusive purview of the Federal Government through the NJC; while on the other provides that the same Judges shall be entitled to pensions, gratuities and other retirement benefits for Public Officers as provided for by the federal and State Governments.”
“3. In view of the above, it is my considered opinion that the President declines assent to the Bill as there is no justification for the huge and unexpected financial burden on the Federal government, the Bill is contrary to Government Policy on retirement age and would lead to stagnation in the career projection for Officers in the Judiciary.”

Abubakar Malami, SAN, CON
Honourable Attorney General of the Federation and Minister of Justice.

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