ANALYSIS: NHIS Controversy: Does Governing Council have powers to suspend Executive Secretary?

Executive Secretary of the National Health Insurance Scheme, Usman Yusuf
Executive Secretary of the National Health Insurance Scheme, Usman Yusuf [photo: Concise News]

Intrigues, confrontation and infighting have been the lot of Nigeria’s National Health Insurance Scheme (NHIS) since its Executive Secretary, Usman Yusuf, assumed office.

One of the latest intrigues in the scheme is its governing council’s decision last week to suspend Mr Yusuf from office.

The council said it applied the sanction to enable a panel it set up look into allegations of fraud and misconduct levelled against My Yusuf.

On Monday, some workers from both Abuja offices of the scheme alongside a handful of security personnel stationed at the gate of the agency’s headquarters tried to stop Mr Yusuf from entering his office.

However, the barricade was breached by Mr Yusuf when he arrived with a contingent of about 50 armed police officers and forced his way in.

The chairperson of the governing council, Enyantu Ifenne, while announcing the suspension, Mr Yusuf’s second since he assumed office in 2016, said the panel asked to probe the allegations against the executive secretary had been given three months to submit its report. She said Mr Yusuf would stay away at least until then.

She said the council got approval for their action from the Minister of Health, Isaac Adewole.

PREMIUM TIMES on Friday published details of a list of nine ‘infractions’ against Mr Yusuf, as released by the governing council.

However, the sanction meted on Mr Yusuf by the council has come under scrutiny lately. There were questions whether the council has such power, especially after a previous suspension of the same official by the health minister, was initially rebuffed by Mr Yusuf and controversially upturned seven months later by President Muhammadu Buhari in February.

Suspension: The Backlash and Yusuf’s Defence

The decision of the governing council is already facing a backlash especially as the suspended official has since refused to accept the sanction.

Mr Yusuf also resumed work on Tuesday. Though scores of workers rallied at the main gate of the head office, they did not attempt to restrain him as they did on Monday.

He had explained to BBC Hausa Service the reason he brushed aside the directive of the governing council.

“The governing board has no right to suspend me as the Executive Secretary,” He said in response to a question Tuesday. “I notified them in a written document that they lack constitutional rights to suspend or even block me from entering my office.”

Dissecting NHIS Act – What The Law Says

The Act governing the NHIS is not very clear on the issue of suspension of the Executive Secretary. The word “suspension” does not appear anywhere in its laws, much less in relation to the head of the agency.

Among the 10 functions of the governing council listed in Part 2, Section 7 of the Act, none specifically even empowers it to query the executive secretary.

Possibly, the closest to that is the provision of the last function which stipulates that “the Council shall have power to: Carry out such other activities as are necessary and expedient for the purpose of achieving the objectives of the Scheme as set out in this Act.”

Meanwhile, the Part 3 section 8 (3) of the Act states that the Executive Secretary is “subject to the general direction of the Council.”

Perhaps, this is the part that the council has latched to to draw the power to suspend the executive secretary.

The first part of the Act (Section 2), details the establishment of the governing council and its members. Subsection J stipulates that the executive secretary is a member of the council who “shall also be the secretary to the Council.”

Section 4 of the same part details what could lead to the cessation of membership of the governing council.

It reads: “A member of the Council shall cease to hold office if he becomes of unsound mind; or he becomes bankrupt or makes a compromise with his creditors; or he is convicted of felony or any offense involving dishonesty or he is guilty of serious misconduct in relation to his duties.”

Though it does not mention who has the powers to sanction members of the council, it states further that “A member of the Council may be removed from office by the President on the recommendation of the Minister if he is satisfied that it is not in the interest of the Scheme or the interest of the public that the member should continue in office.”

Lawyers weigh in

Some lawyers we spoke to regarding the actions of the governing council and the limits of its powers shared divergent views but agreed the matter is ‘contentious’.

Renowned human rights activist, Femi Falana, argued that even though the executive secretary is appointed by the president, “the law states that he is subject to the control and directions of the governing council.”

Mr Falana, however, cited loopholes in the Act. “The law never envisaged that the ES will be above disciplinary control of the supervising minister and the governing council.”

But for Simon Abah, a Senior Advocate of Nigeria (SAN), the governing board over-stepped its bounds.

“They are more or less an advisory body, they can recommend dismissal and termination but they don’t do it themselves and that is why the president did not allow the suspension.”

However, Nzube Akunne, another lawyer countered Mr Abah’s position. He believes the governing board of government institutions have powers to sanction erring officials even if its not clearly stated in their act.

“There are some institutions where the act clearly gives the governing board powers to give sanctions while it doesn’t in some others”, Mr Akunne, a Lagos-based lawyer opined.

“In universities for instance, the Act gives the governing board which is the senate, powers to sanction lecturers. In the case of NHIS, there might be subsidiary legislation powering the council besides the act. Mostly, it is assumed that governing councils have powers to sanction. This issue is contentious and debatable depending on the context.”
Also on Tuesday, a presidential spokesperson, Garba Shehu, questioned the powers of the council to sanction Mr Yusuf.

“Did the board follow due process in suspending this gentleman? There are opinions that said, ‘No, they haven’t”, Mr Shehu told the News Agency of Nigeria, NAN. “Again, we all have to do the right thing all of the times.”

The presidential aide who noted he was not in the position to challenge the allegations of wrongdoings levelled against the executive secretary, also dismissed the accusation of ‘double standards’ by the Buhari administration in dealing with corruption cases such as Mr Yusuf’s.

Mr Shehu further praised Yusuf for launching “a major reform in that institution”.

But his appraisal of the embattled official was criticised by Mr Falana in a short message sent to PREMIUM TIMES.

“Assuming without conceding that Yusuf has sanitised the NHIS, the open defence of his defiant behavior by the presidency is an official endorsement of insubordination which is alien to the public service in Nigeria”, the lawyer said.

Yusuf – The untouchable

Mr Yusuf is believed to have the backing of the president and has a reputation for disparaging directives from higher authorities except for that of the president alone.

He has ruled the scheme with an ‘iron fist’ and has bragged of being ‘untouchable’ , some workers said.

When he was previously suspended last July over similar allegation of fraud and infractions, by the health minister, he disregarded the sanction in that first instance, saying the minister had no power to suspend him.

He did not only reject Thursdays’ suspension by the governing council but also militarised the agency’s head office and forced his way in.

“As usual, the Presidency is likely to have been misled to believe that Yusuf is fighting corruption. Hence, the presidency has given the dangerous impression that the guy is untouchable,” Mr Falana noted.

Suspension Failed? What other options has governing board?

The council can either resign or challenge the decision of Mr Yusuf to treat his suspension with disdain, Mr Falana, also a Senior Advocate advised the NHIS board.

“A Governing Board/Council has no powers to suspend a DG/ES on its own. They can RECOMMEND suspension to the President through the SGF but they can’t suspend”, Joe Abah, a former Director General of the Bureau of Public Service Reforms also wrote on twitter.

Mr Adewole in his first reaction to the controversy on Monday said he is waiting to be briefed but failed to explain if the council sought his approval before suspending Mr Yusuf. The minister did not respond to a message to him seeking further clarification of his stance.

Meanwhile, the council itself has not made its position known since its order was ignored

Mrs Ifenne, the chairperson, said the council does not have a position yet as the members had not met when contacted over Monday’s stand off.

She asked to be given time to “digest” what is going on.

On Wednesday, the House of Representatives resolved to set up an ad-hoc committee to investigate the latest controversy trailing the scheme.


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