I’m about to retire, how do I protect my pension?

Hi Eric,

After many years of service, I am finally approaching retirement. Ideally, this should be a wonderful time but my relief is tainted by disturbing rumours going round at the office. I hear the company is having trouble managing the pension fund. How do I deal with this information? Do I have the right to access my records just to make sure my pension is protected? Please advise.

Hi,

Social security of any person with or without employment should never be subjected to abuse or misuse. In general, retirement shouldn’t come with surprises, but it is common knowledge that old age has baggage often caused by failed health.

It is worse if one’s retirement benefits are unavailable for whatever reason. Proliferation of pension schemes in the country demonstrates the difficulty of saving as a way and part of life, yet a desire for most. This is more reason the law is designed to reduce access opportunities to such resources, which may be available to any saver in this regard. Accruing money for pension is a safeguard measure to suffocate income insecurity that could injure a person’s resilience plan once they retire from active work life.

However, incidents where pensioners suffer owing prominence of human motivated funds misapplication, abuse or misuse abound. In order to nip some of these bad governance practices by pension scheme managers, the Retirement Benefits Authority Act, establishes Retirement Benefits Authority (RBA).

Pension schemes

The RBA is the institution under Section 3 of the Act mandated to regulate and coordinate all private and public pension schemes. The RBA exists to: regulate and supervise the establishment and management of retirement benefits schemes: protect the interests of members and sponsors of retirement benefits sector: promote development of the retirement benefits sector: advise the Cabinet Secretary in charge of National Treasury, on the relevant national policy to be complied to with regard to retirement benefits scheme.

Company pension schemes are mostly classified as occupational pension schemes. Many of these follow the defined contribution plan, where members and employers’ contributions are fixed either as a percentage of pensionable earning(s) or as specific shilling amount.

A member of such a scheme upon retirement receives amounts equivalent to the contributions he or she jointly made with their employer, alongside any other accruals rewarded from investments there from. There could be reasons leading to your fear, although none has been mentioned.

The statement “...I am worried about the company pension because I have heard disturbing rumours about how they are managing the fund,” is not clear enough for a specific response. Nonetheless, there are mechanisms in and by law that can be utilised to ascertain the alleged mismanagement of the company pension scheme(s).

Every pension scheme has the obligation to fulfil certain legal and practice expectations to confirm their health status.

 Section 34 (4) of the Retirement Benefits Act, requires that pension scheme(s) submit several statutory documents to the RBA to affirm or confirm compliance. These submissions include annual reports and statements of audited accounts that must be submitted to the Authority’s chief executive within three months of the end of each financial year.

Misappropriation

Further, every Pension scheme’s record of contributions is to be submitted to the Authority by the 15th day of every third calendar month. The purpose of this is to monitor the state of affairs within schemes to reduce chances of misappropriation or other shady transactions, like deductions without remittances.

Should someone, a member of the scheme, find reason to believe that things are going wrong in their scheme, the law gives them power to approach RBA for redress. Remember, among the five broad roles of RBA, protecting the interests of members and sponsors of retirement benefits schemes is one.

Section 46 of the Act states that “Any member of a scheme who is dissatisfied with the decision of the manager, custodian or trustees of a scheme may request, in writing, that such decision be reviewed by the Chief Executive Officer with a view to ensuring that such decision is made in accordance with the provisions of the relevant scheme rules or the Act under which the scheme is established. “A copy of every request under this section shall be served on the manager, trustees or custodian of the scheme”.

Once complaints are received, the management of RBA, in particular the department that deals with complaints, institutes investigations to understand and unravel the issue. Such investigations lead to decisions by the Authority that are shared to the members and sponsors of the scheme in seeking to find sustainable solutions.

Please note that RBA cannot deal with complaints of any Civil Service Pension Scheme (government pension) or other government benefits. Such complaints should be taken up with the office of the Secretary/Director of Pensions as these schemes are exempt from RBA regulation under Section 32 of the Act.

While RBA has mechanisms including an appeal tribunal to deal with uncertainty in pension schemes, an aggrieved party, who may be dissatisfied with the decisions emanating from the dispute resolution process, is at liberty to invoke several other Articles of the Constitution to prosecute issues through litigation.

The powers given to right holders under Article 22 (1) and (2), alongside Articles 47 and 48 on fair administration action, and access to justice respectively would be married to protect pensioners’ interests. Constitutional petition number 560 of 2017 demonstrates this quite well.

Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]