The change of pension laws left the Public Service Pensions Fund (PSPF) pensioners groaning in pain as our lawmakers took away their bread for those who had downed their tools at the voluntary age of 50. The new pension laws said that those receiving a pension after 50 would immediately cease and would have to find other sources of income until they reached the voluntary retirement age of 55.
Those affected by those changes in the laws were disheartened, pissed off, and rushed for judicial remedies, where they were slapped with a black eye. This discourse traces the origins of this legal battle, why the pensioners were unsuccessful in our flawed judicial system and give a glimmer of hope that the African Court would most likely restore their stolen rights.
The Source of Pension Scheme Injustices Traced
To understand the matter before us, we need to begin from the beginning, and that is where the status of the pension scheme was before the laws were dismembered. Under the old pension law, access to pension schemes covered pensioners who had clocked 50 years of voluntary retirement to the then mandatory retirement of 55 years.
With the pension scheme being abused and looted, it became clear to policymakers that it could not sustain itself, so they raised the voluntary retirement age from 50 to 55 and the mandatory retirement age from 55 to 60.
The raising of the retirement age mentioned above did not address the problem of the pension scheme failing to meet its obligations. Pensioners kept drawing money from a malnourished fund at a rate that was not sustainable. Policymakers returned to the drawing board to raise the access age to retirement funds from 50 to 55, leaving those already enjoying the fruits of their toil high and dry!
The victims of the reforms felt the new pension laws that took away their bread were unconstitutional and confidently marched to courts in search of the recovery of their stolen pension. The judicial system failed them!
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The Appeals Court Condemned The Pensioners to Poverty and Hopelessness!
While the High Court agreed with the disgruntled PSPF pensioners that their constitutional rights were illegally infringed upon, the Court of Appeal rescinded the High Court’s decision, leaving the gross injustice intact!
At the heart of the dispute was the constitutional principle that new laws cannot take away rights that the repealed laws had already given to the beneficiaries. The pension scheme reform had snatched the pension benefits of those who had reached 50 years old, taking away their means of sustenance.
In overturning the High Court ruling, the Appeal Court stooped so low to the erroneous interpretation of UJIRA. The Appeals Court took a narrow view to claim UJIRA meant wages (mshahara), and pension was not wages to be protected under that constitutional imperative!
The Court misdirected herself from not taking a wider interpretation of the word UJIRA to include any source of income that can sustain a person. I say so because the terminology of UJIRA is not confined to employee salary. The Kiswahili dictionary does not say wages are the only meaning of UJIRA. The Appeal Court coined the meaning of UJIRA to defraud the affected pensioners. According to the Appeal Court, a peasant, self-employed, or a business person is not earning “UJIRA” to be protected under that constitutional article. It is absurd even to imagine the legal ramifications of such a narrow view.
Why Our Judicial System Insensitive To The Plight of The Poor?
In our struggle to end colonial rule, the real argument was that rule would better our lives because we are the wearer of the shoe and know where it pinches. All post-independence regimes have eroded that nobler intent as they have ferociously pursued the establishment of what I dub an Orwellian Farm.
For those unfamiliar with the Orwellian Farm, it is based on the book Animal Farm. Animal Farm is a beast fable in the form of a satirical allegorical novella by George Orwell, first published in England on 17 August 1945. It tells the story of anthropomorphic farm animals who rebel against their human farmer, hoping to create a society where the animals can be equal, free, and happy. Ultimately, the rebellion is betrayed, and under the dictatorship of a pig named Napoleon, the farm ends up in a state as bad as it was before.
This is what is happening to all post-independence Africa. The aims of self-rule and determination have been hijacked by cartels keen on personal enrichment schemes. Our leaders have become that notorious Napoleon who made laws that appeared to build a just and equal society but, in the same breath, have been taking away those rights entrenched in the Constitution!
In the Orwellian Animal Farm, the constitution says all animals are equal, but the same Animal Farm laws shift gears, saying that the rulers of the day were more equal than others! This is what we are now witnessing before our own eyes.
If you look at pension laws, you will see the rulers of the day have written many discriminative and unjust laws, permitting the creation of economic classes. The real threat to our unitary government hails from the stratification of economic classes that ensure the poor stay poor and the rich get richer. The Russian Empire was removed by force for entrenching injustices against the poor, and we are following suit, hoping for a different outcome!
The discriminatory tendencies informed the judiciary that the plight of the pensioners before them was not their legal fight. As a result, the Court was insular because its pension scheme was unaffected by those disputed pension scheme reforms. Judges do not retire at 50 years of age, so they have nothing to lose if they deny the pensioners their constitutional rights.
Another reason to be concerned that our constitution lauds the doctrine of separation of powers among the three arms of government is that almost all legislative efforts have been pursued to negate this constitutional tenet. Judicial officers are corrupted by executive employment, which dangles bait for them to side with the executive injustices against the weak members of society.
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Judicial officers tend to issue decisions sympathetic to the executive to seek and secure appointments in the government. It comes as little surprise when we see judges hellbent on overruling the rights of the Lilliputians, who are the ones who are parted in the back-to-head commissions and boards of directors and run the Attorney General’s office. A judge who is supposed to judge cases has one leg advising the executive on how to defeat the ends of justice! It is a stature of conflict of interest, all condoned in the name of official graft!
Righteous judges of the similitude of Hon. James Mwalusanya were snubbed to such lucrative executive appointments because they firmly stood with what the law used to be: righteousness. What is happening is official graft threatening to rip apart the sanctity of our nationhood. Sudan went through it and is paying dearly for not fixing the rot before it got out of hand. We ought to fix our governance rot before we get fixed by it.
Legislation cannot stymie the pension scheme management problems. The solution to the pension scheme caused by poor leadership and theft of public funds lies in taking the politicians off the back of the pensioners. It is preposterous that politicians who are not contributors to the pension schemes are the ones calling the shots while the actual contributors are powerless to manage their funds!
Until the day we empower the pensioners and consolidate all pensions in one fund, the problems we see in pension mismanagement will continue to outlive the efforts to raise the retirement age in the hope that the earlier the death of the pensioners would rescue the famished schemes!
Unlike our captured judicial system, the African Court is not at the behest of our corrupt executive. In the articles of a protocol of the African Court, there is a recognition that new laws cannot take away the inalienable rights protected under the repealed laws. Since the African Court is apolitical, unlike our compromised Judiciary, we can be assured that this African Court can restore the rights of defrauded pensioners.
