Since, this news platform, Premium Times, published our intervention entitled ” Sanusi’s Suspension is Illegal and Unconstitutional” on Friday, February 21, 2014, a number of persons, in reaction to the article, have asked whether, having regard to the provisions of the Interpretation Act, the President can, legally, suspend a CBN Governor.
In the said article, we treated this question, though not in great detail. Understandably for reasons of space constraint. Our position was that the President lacks the power to suspend the CBN Governor. Our view remains the same. We return to this question now, to offer some elaboration.
Before we do so, we may even need to ask whether, truly, Mallam Sanusi Lamido Sanusi, the CBN Governor, has been suspended by the President. Does the suspension have a legal or binding force; is the letter of suspension effectual? We need to know, because this letter has not been published in an Official Gazette of the Federal Government of Nigeria. Recall that at the Senate Finance Committee hearing on the US $ 20 Billion, the Petroleum Resources Minister, Mrs. Deziani Alison Madueke, had unfurled a Deziani Doctrine.
The Doctrine had postulated that since the presidential directive, by Late President Yar Adua, stopping further payment of kerosene subsidy, in 2009, was not gazetted, it was ineffectual. We may also need to advise Mr. President to order that the recent rebuttal, made on his behalf by his Media Office, against the public and open pronouncement of the Minister of Petroleum Resources that the Federal Government had decided to sell the Country’s refineries, when a strike by oil sector’s workers to protest the intended sale loomed large, be gazetted, if this is yet to be done. Otherwise, relying on the Deziani Doctrine, the refineries may still be sold, on the orders of the Minister of Petroleum .
Humour apart, as the law stands today, Mr. President lacks the power to suspend a CBN Governor. And assuming without conceding that he possesses the power of suspension, same must be exercised jointly and together with the Senate of the Federal Republic of Nigeria.
As we stated, earlier, 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 provides for cessation of appointment by a CBN Governor, Deputy Governor and Director of the CBN. Section 11 (2) ( c & f) of the Act stipulates that “the Governor, the Deputy Governor or Director shall cease to hold office in the Bank if he- [c] he is guilty of a serious misconduct in relation to his duties under this Act; 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”
Section 11 (4) of the CBN Act provides that ” 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 of-[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.
When, Section 11 (4) and Section 8 ( 1 &2) of the CBN Act are read together, it becomes glaringly obvious that Mr. President has served Nigerians a cocktail of illegalities. By “suspending” the CBN Governor, the President has created a vacancy in the office of the Governor of the CBN. And the CBN Act states very luminously that to fill such a vacancy, even on a temporary basis, for the new appointee to complete the term of a removed or suspended Governor, the President must get a confirmation from the Senate. This, the President did not do.
Thus, the appointment of Sarah Alade as Acting CBN Governor to serve the remainder of Sanusi’s tenure is a blatant illegality. To be appointed to serve the remainder of Sanusi’s tenure, the Senate must concur by a confirmation vote, as it is the case when a substantive Governor is being appointed. This interpretation is not our making. It is the making of the CBN Act.
It is common ground that the President, acting alone, cannot remove the CBN Governor from office. The Presidency has explained that SLS has not been removed from office but has been suspended from office. And that Mr. President has the power to do so, because “he who has the power to appoint, has the power to suspend” ( We refer here to Dr. Ruben Abati’s media briefing. ).
Section 11 of the Interpretation Act, Cap 123, Vol. 8, LFN, 2004 provides that “(1) where an enactment confers a power to appoint a person either to an office or to exercise any functions whether for a specified period or not, the power includes:(a) power to appoint a person by name or to appoint the holder from time to time of a particular office; ( b) power to remove or suspend him; (c) power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to power to appoint-(i) to re-appoint or reinstate him;(ii) to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested; (2) a reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the functions of the office generally or the functions in regard to which he is appointed, as the case may be”
We want to assume that those who are erroneously asserting that the President has the power to hire and fire and suspend a CBN Governor are referring to the provision of Section 11 of the Interpretation Act. Reliance on this provision of this Section 11 of the Interpretation Act as the statutory enabler that authorized the President’s action of suspension of the CBN Governor is misconceived.
We argue that Section 11(1) (b) of the Interpretation Act does not apply to the office of the CBN Governor. Under the CBN Act, the powers to appoint or remove the CBN Governor to or from office have been specifically and carefully donated to two authorities in two branches of government: the President, the head of the Federal Executive Branch of Government; and the Senate ( the Upper House) of the Federal Legislature. The procedures of appointment and removal are provided. There is no omission or lacunae. There is no mention of suspension. in the CBN Act. This is not because of legislative forgetfulness. If the law-giver wanted either or both of the two authorities to exercise the power of suspension over the CBN Governor, in addition to the powers of appointment and removal, that power similarly would have been vested in either or both authorities.
“It is trite that once the law has prescribed a particular method of exercising a statutory power any other method of exercise of it is excluded.’ ‘Except where the law gives a discretion to a public functionary he can only act in accordance with the express provisions of the law, as to do otherwise would enthrone arbitrariness.” See Ude v Nwara (1993), 2 NWLR, Pt 278, 661, para. D, 664, para. E-F.
We submit that the reason why the power of suspension is not donated is to make the occupant of office of the CBN Governor enjoy security of tenure. He is not to occupy the office at the pleasure of a President. The appointment has statutory flavour. Just as the President cannot go inside a university and suspend a vice-chancellor or a lecturer, as a President of Nigeria, claiming authority to do so under the Public Service Rules or Interpretation Act, but must act as a visitor to the university, qua visitor, and as the appointing and removing authority within the confines of a statute establishing a university, and strictly and scrupulously following the procedure for removal or discipline therein, we submit that the President cannot abandon the CBN Act and seek refuge under the Interpretation Act to suspend the CBN Governor. The role of Mr. President, as President of Nigeria, is different from his role as co-appointing and removing authority under the CBN Act in relation to the office of the CBN Governor. See Anya v. Iyayi( 1993) 7 NWLR (Pt. 305), 290 at 314-315, para. E-E; U.N.T.H.M.B v. Nnoli ( 1994) 8 NWLR (Pt. 363), 376 at pages 400-407.
Assuming ( without conceding) that the power of suspension can be imported into the CBN Act, the question is, who can exercise the power of suspension and how can it be exercised? Clearly the answer is not far-fetched. The Senate and the President are both the appointing and removing authority.
Thus, that appointing authority, the Senate and President, shall jointly exercise the power to suspend the CBN Governor. So, if we were to follow the “learned submissions” of Dr. Ruben Abati that he who hires can suspend, then the two institutions who hired the CBN Governor have not suspended him. The suspension is, in the eye of the law, a nullity, and the President, indubitably, has acted ultra vires.
Mr. Ogunye, constitutional law expert and Premium Times’ Legal Adviser, concludes, with this article, a trilogy on the legal implications and meaning of the abuse of presidential powers represented in the illegal removal of the CBN Governor, Mr. Sanusi Lamido Sanusi. Please give him feedback at email@example.com