Sanusi’s Suspension is Illegal and Unconstitutional, By Jiti Ogunye

Monday morning, February 20th, President Goodluck Jonathan suspended Nigeria’s  Central Bank Governor, Sanusi Lamido Sanusi, from office.

Dr. Reuben Abati, Special Adviser to the President, Media and Publicity, announcing the suspension said to have ordered Mr. Sanusi to hand over to the most senior Deputy Governor of the Bank, Sarah Alade, who will serve as Acting Governor until the conclusion of ongoing investigations into alleged breaches of enabling laws, due process and mandate of  the Central Bank,

The statement, as reported by PREMIUM TIM ES  said, ‘Having taken special notice of reports of the Financial Reporting Council of Nigeria and other investigating bodies, which indicate clearly that Mallam Sanusi Lamido  Sanusi’s tenure has been characterized by various acts of financial recklessness and misconduct which are inconsistent with the administration’s vision of a Central Bank propelled by the core values of focused economic management, prudence, transparency and financial discipline; ‘Being also deeply concerned about far-reaching irregularities  under Mallam Sanusi’s watch which have distracted the Central Bank away from the pursuit and achievement of its statutory mandate; and ‘Being determined to urgently re-position the Central Bank of Nigeria for greater efficiency, respect for due process and accountability, President Goodluck Ebele Jonathan has ordered the immediate suspension of Mallam Sanusi Lamido Sanusi from the Office of Governor of the Central Bank of Nigeria’.

‘Mr. Abati said the President expects that as Acting Governor of the Central Bank, Mrs Alade will focus on the core mandate of the Bank and conduct its affairs with greater professionalism, prudence and propriety to restore domestic and international confidence in the country’s apex bank.’

‘The Federal Government of Nigeria reassures all stakeholders in Nigeria’s financial and monetary system that this decision has been taken in absolute good faith, in the overall interest of the Nigerian economy and in accordance with our laws and due process” he said, in the statement signed February 20, 2014, the statement added.”

Our reaction to this suspension is that it is illegal and unconstitutional. More than that , it is  vindictive, mischievous, oppressive, ill-timed, indefensible and an unacceptable resort to self help. It is not in the public interest.

The CBN Act No. 7 of 2007 ( Fed. Rep of Nig Official Gazette No.55 Vol. 94 of 1st June 2007) provides for the appointment of the CBN Governor and his removal from office. Section 8(1) of the CBN Act provides that “the Governor and the Deputy Governors shall be persons of recognized financial experience and shall be appointed by the President, subject to confirmation by the Senate on such terms and conditions as may be set out in their respective letters of appointments” (2) the Governor and the Deputy Governors shall be appointed in the first instance for a term of five (5) years and shall each be eligible for re-appointments for another term, not exceeding five (5) years; provided that of the first four (4)Deputy Governors to be so appointed, one shall in the first instance be appointed for three (3) years and two (2) shall in the first instance be appointed for four (4) years”  

Section 11 of the CBN Act stipulates  that:

  1. 1.    ” a person shall not remain a governor, deputy governor or director of the bank, if he is-[a] a member of any federal or state legislative house; or [b] a director, officer or employee of any bank licensed under the Banks and Other Financial Institutions Act;
  1. 2.    the Governor, the Deputy Governor or Director shall cease to hold office in the Bank if he-[a] becomes of unsound mind or, owing to ill health, he is incapable of carrying out his duties; [b] he is convicted of any criminal offence by a court of competent jurisdiction, except for traffic offences or contempt proceedings arising in connection with the execution or intended execution of any power or duty conferred under this Act or the Banks and Other Financial Institutions Act; [c] he is guilty of a serious misconduct in relation to his duties under this Act; [d] he is disqualified or suspended from practicing his profession in Nigeria by order of a competent authority made in respect of him personally; [e] becomes bankrupt; or [f] is removed by the President; PROVIDED that the removal of the Governor shall be supported by two-thirds majority of the Senate praying that he be so removed;
  2. 3.    the Governor or any Deputy-Governor may resign his office by giving at least three months notice in writing to the President of his intention to do so and any director may similarly resign by giving at least one month notice in writing to the President of his intention to do so;
  1. 4.     if the Governor, any Deputy Governor or director of the Bank dies, resigns, or otherwise vacates his office before the expiry of the term of which he has been appointed, there shall be appointed a fit and proper person to take his office on the Board for the unexpired period of the term of appointment in the first instance if the vacancy is that if-[a] the Governor or a Deputy Governor, the appointment shall be made in the manner prescribed  by Section 8 ( 1 &2) of this Act; and [b] any director, the appointment shall be made in a manner prescribed by Section 10 (1&2) of this Act.

The statement issued on behalf of the President alleges that Sanusi Lamido Sanusi’s  “tenure has been characterized by various acts of financial recklessness and misconduct which are inconsistent with the ( Goodluck Jonathan’s) administration’s vision of a Central Bank propelled by the core values of focused economic management, prudence, transparency and financial discipline”. It is thus clear that the suspension of the CBN Governor from office is on alleged ground of misconduct. Now, what does the above quoted provision on cessation of holding office on ground of misconduct say? Is says, simply that  the CBN Governor “shall cease to hold office in the Bank if  [c] he is guilty of a serious misconduct in relation to his duties under this Act”.

The question that arises are these: Has the CBN Governor been found guilty of serious misconduct in relation to his duties under the CBN Act? The answer is no. The CBN Governor might have been investigated by all sorts of bodies, but has he been found guilty? No, is the answer. The second question is, who can try and adjudge the CBN guilty of serious misconduct, is it the President of Nigeria or the Board of the CBN? The answer is that it is not the President, but the Board of the CBN that can, in the first instance, found the CBN Governor guilty of minor or serious misconduct.

While it is true that the CBN Act does not contain any provision on disciplinary procedure for members of the CBN Board,  it is submitted that the Board of the CBN, though headed by the CBN Governor, can, rightly try the CBN Governor for acts of misconduct. During such a trial, the CBN Governor, who shall have the right to defend himself before a disciplinary committee of the Board,  that the Board may set up, shall  recuse himself from the Board’s deliberation and decision on the recommendation of the disciplinary committee.

We are fortified in holding this view by the provisions of Section 6(1) of the CBN Act which provides that “there shall be for the Bank a Board of Directors which shall be responsible for  the policy and general administration of the Bank“; and Section 6(3)(f) of the Act, which says that   “the Board shall be responsible for carrying out of such other activities as are necessary and expedient for the purposes of  achieving the objectives of the Bank” and Section 32(1) of the Act which provides that ” the Bank may, subject as is expressly provided in this Act, generally conduct business as a Bank, and do all such things as are incidental to or consequential upon the exercise of its power or discharge of its duties under this Act“. What  the President has done by this suspension on the alleged ground of misconduct is to usurp the powers and functions of the CBN Board.

The third question is, does the CBN Act provide for suspension of the CBN Governor from office, while he is allegedly being investigated for acts of serious or gross misconduct? The answer, again, is no. The only suspension that can act as a basis of removal of the CBN Governor from office is if “he is disqualified or suspended from practicing his profession in Nigeria by order of a competent authority made in respect of him personally”

The fourth question is, can the CBN Governor’s tenure cease or  can he be suspended from office,  except as  provided by the CBN Act? The answer is no. The President has the power to remove the CBN Governor from office. The ground on which the President may remove him is not provided in the CBN Act, but the CBN Governor cannot be removed by the President unless the Senate agrees. Looking at the CBN Act, which guarantees security of tenure of the CBN Governor, we are of the view that the power of suspension cannot be assumed by the President, except that power is specifically and clearly donated to the President by Statute ( CBN Act).

There is no rule of interpretation in the Interpretation Act or any law which says that if a statute specifically grants an authority a power to remove another authority, the power to suspend that authority is thereby implied. Assuming the power of suspension is thereby implied, it is submitted that since the power to remove the CBN Governor is exercised and shared jointly with the Senate, the power of suspension must also be similarly shared; meaning that the President, acting alone, cannot suspend the CBN Governor.  The primary submission, however, remains that the  power of suspension has not been donated to the President. The President, therefore, acted illegally.

 In the coming days, the  President and the Attorney-General of the Federation may argue that Mallam SLS has merely been suspended, and that he has not been removed from office, a removal which will require the two-thirds majority vote of the Senate. And that as such the President has not violated provision of any law. This will not wash. That was exactly what this President did to PCA, Justice Isa Ayo Salami for two years, keeping him in limbo. Even when the NJC, in whose name the Salami’s ouster hatchet job was done, penitently recalled the jurist, the President remained adamant.

The tactic is obvious: illegally suspend a public officer from office, when, certainly a two-thirds majority vote approving a removal is not available in the Senate, and loot or gut the remainder of the tenure of office of the public officer, who has a security of tenure. This is familiar mischief. As a matter of fact, if Sanusi should go to Court to challenge this suspension, a cynical Attorney-General will pontificate and declare that the matter has now become sub judice, and that the Federal Government can no longer take any  decision on the matter until the matter is resolved by the law Court.

The fifth question is, can the President exercise power of suspension or discipline over the CBN Governor outside the CBN Act, can the President resort to the disciplinary procedure under the Public Service Rules to suspend the CBN Governor ? The answer is no. We say no, for two reasons. The first reason is that although the CBN Governor is a public officer in the Public Service of the Federation ( See Section 318 of the Constitution of Nigeria -Interpretation Section- Public service of the Federation-paragraph (f), the Public Service Rules do not govern his appointment. And this is in spite of the audacious provision of  Rule 01001 of the Public Service Rules, which says that “the public service rules apply to all officers except where they conflict with specific terms approved by the Federal Government and written into contract of employment or letters of employment

The CBN is a statutory corporation or agency created by its own Act just like, a Federal University. Every Act establishing a university has a disciplinary procedure for the sanctioning of a lecturer or even a vice chancellor for acts of gross misconduct, at the instance of the governing council. A desperate elopement from the provisions of those legislations and a resort to the public service rules to achieve a desire of an ouster from an office that enjoys a statutory flavour will be illegal.

Secondly, even if it is being suggested that in the instant case of the CBN Governor, the rule of suspension from office pending investigation of allegation of act of gross misconduct, as provided by Rules 04302-04306, and 04402 of the Public Service Rules, is the rule that has been invoked by the President, we declare that the President cannot invoke that rule; it is only the Federal Civil Service Commission that can invoke these disciplinary powers.

For the avoidance of any doubt, Rule 04305 provides that ” suspension should not be used as a synonym for interdiction. It shall apply where a prima facie case, the nature of which is serious, has been established against an officer, and it is considered necessary in the public interest that he should forthwith be prohibited from carrying on his duties. Pending investigation into the misconduct, the Federal Civil Service Commission or the Permanent Secretary/ Head of Extra Ministerial Department ( if within his delegated powers0 shall forthwith suspend him from the exercise of the powers and functions of his office and from the enjoyment of his salary

Every Nigerian should be worried and angry that our President has, again, violated the rule of law because he wants to achieve an end at all cost. Following the alleged leak of the controversial CBN Governor’s Letter to the President, the President reportedly asked the CBN Governor to resign his office. The CBN Governor reportedly refused. And since he would not go willingly, he has to be shoved out.

This, we say, is nothing but the rule of force. It is also very instructive that the CBN Governor is being sent packing in the middle of a whistle blowing national assignment regarding the US$ 20.billion out of which  the sum of US$ 10.8 billion is agreed by all sides as the amount that NNPC expended without appropriation. The Senate and the House of Representatives are investigating this matter. And Sanusi is the only people’s witness available. He is the antagonist. The others are the protagonists. Why should the President take a preemptive step that is calculated or intended  to jeopardize  the work of the first arm of government, the legislature? This act of suspension will hamstring the current oversight functions of the legislature.  Is the National Assembly expected to take this?  The President is not a chief promoter of corruption.  The timing of this act of suspension is wrong. The motive is wrong. It is not in the national interest.

We are also of the view that the right of the CBN Governor to fair hearing guaranteed by Section 36 (1)  of the Constitution has been violated. Section 36 (1)  provides that “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.

We note that Section 36(2) ( a & b)  provides that ” without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law – (a) provides for an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and (b) contains no provision making the determination of the administering authority final and conclusive.”

We  submit, , that the President has not cited any law, and he cannot cite any law that has empowered him to suspend the CBN Governor. Thus, Section 36(2) of the Constitution does not apply. There is no provision of any applicable law that allows a temporary suspension of a CBN Governor, pending a final punishment, by the President.

 Before now it has been widely argued and accepted that the CBN enjoys “statutory autonomy” and “independence”, and that this was deliberately made to be so in the CBN Act No. 7 of 2007 ( Fed. Rep of Nig Official Gazette No.55 Vol. 94 of 1st June 2007), by the legislature, to ensure CBN’s effectiveness in the discharge of its mandate. This statutory autonomy, it has been strongly canvassed, accords with international best practices regarding the structure, corporate governance and operations of central or national banks world-wide.”

 Section (S) 1 (3) of the Act  provides that “in order to facilitate the achievement of its mandate under this Act, and the Banks and other Financial Institutions Act, and in line with the objective of promoting stability and continuity in economic management, the Bank shall be an independent body, in the discharge of its functions”  S. 6(3) of the Act states that  “the Board ( of Directors of the CBN) shall be responsible for (a) the consideration and approval of annual budget of the Bank, (b) the approval of the audited and management accounts and the consideration of the management letter from the external auditors, (c) the formulation and implementation of the exchange rate policy, and (d) making recommendation to the President for the appointment of auditors in accordance with S. 49 of the Act, the provision of the necessary facilities and the rate of remuneration.” And S. 49 (1&2) states that “the accounts of the Bank shall be audited by the auditor(s) appointed in accordance with the provisions of S. 6 of this Act; and (2) the Auditor-General of the Federation shall conduct an examination of the accounts of the Bank and submit a report thereon relating to the issue, re-issue, exchange and withdrawal of currency notes and coins by the Bank and the Bank shall provide all necessary facilities for the purpose of the examination”

It can, therefore, be seen that the CBN, by its enabling law, is not a body that is  accountable or responsible to no one.  S.8(4) of the Act provides that “ the Governor ( of the CBN) shall appear before the National Assembly at semi-annual hearings as specified in subsection 5 regarding-: (a) effort, activities, objectives and plans of the Board with monetary policy, and (b) economic development and prospects for the future described in the report required in subsection 5(b) of this Section.”

S. 8(5) of the Act provides that “the Governor (of the CBN) shall from time to time (a) keep the President, informed of the affairs of the Bank, including a report on its budget and, (b) makes a formal report and presentation on the activities of the Bank and the performance of the economy to the relevant committees of the NA.” And  S. 50 (1-2) of the Act provides that “the Bank shall, within two months after the close of each financial year transmit to the NA and the President a copy of its annual accounts certified by the auditor; and a report required to be submitted to the NA and the President shall be copied by the Bank in such manner as the Governor may direct”

The CBN Act has ample provisions to make the CBN Governor accountable, and if he abuses his office or powers or is adjudged guilty of misconduct, the due process of law must be followed in sanctioning him. We will not  support a corrupt CBN Governor who disregards the due process of law in discharging the duties of his office. But we insist, the President has not followed the due process of law.

Mr. Ogunye, a constitutional lawyer, and scholar, is Premium Times Legal Adviser.

 


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