Legal issues on the suspension of the CBN Governor

The suspension of the erstwhile Central Bank of Nigeria (‘CBN’) Governor, Sanusi Lamido Sanusi from office has attracted speckled commentaries and discussions from the media and the public at large.It has been argued that the process of his suspension represents a flagrant contempt to the rule of law and due process which should not be associated with a civilian regime. Others have also argued that the suspension is based on selective justice because several corrupt officials in top government positions have not suffered the same fate in the hands of the President. Perhaps the most debated issue has been the fact that the suspension came after the allegations of financial misappropriation was levied against the Nigeria National Petroleum Corporation (‘NNPC’).

Notwithstanding the above arguments, this Article shall focus on the legal issues surrounding Mr Lamido Sanusi’s suspension and to this end, raises the following issues for determination:

a) Whether the President can unilaterally appoint, supervise and suspend the CBN Governor?

b) Whether the President adhered to the procedure provided under the Central Bank of Nigeria Act Cap C4 LFN 2004 (‘Act’)?

c) Whether the term ‘suspension’ in the statement released by the Presidency has the effect of a removal?

Whether the President can unilaterally appoint, supervise and suspend the CBN Governor?

The golden rule governing the interpretation of statutes is that words should be given their literal and ordinary meaning where such words are not ambiguous. However, the Supreme Court perOgundare JSC in Ishola v. Ajiboye (1994) 6 NWLR (Pt. 352) 506 at 535 further laid down certain cardinal principles in the interpretation of statutes. One of such principles states that a statute cannot be interpreted in a vacuum but all relevant provisions should be examined in other to find adequate guidance at arriving at the correct decision. It is for this reason that we would also examine the relevant sections relating to who has the powers to appoint, supervise and discipline a CBN Governor.

Section 8 (1) of the Act provides that the CBN Governor is ‘appointed by the President subject to confirmation by the Senate on such terms conditions as may be set out in their respective letters of appointment’.Section 4 of the Act establishes a Board of Directors while Section 7 states that the CBN Governor shall be answerable to the Board for all his acts and decisions. Section 8 (4) of the Act further statesthat the CBN Governor shall appear before the National Assembly at semi-annual hearings on the activities of the Bank. These provisions attempt to prevent an abuse of office, thus the CBN Governor is supervised by the Board of Directors, the President and the National Assembly.

The Act is clear on how the appointment of the CBN Governor is to be effected and the power of appointment is not vested solely on the President. The appointment is made subject to confirmation by the Senate and this cannot be construed to mean that it gives unfettered power to either the President or the Senate to act without recourse to the other. The essence of allowing more than one arm of government to administer the appointment of public officials was highlighted by the Supreme Court in Elelu-Habeeb v. AG Fed (2012) 13 NWLR (1318) 423. In this case, the Supreme Court discussed the role of the National Judicial Service Commission, the State House of Assembly and the Governor in the appointment of the Chief Judge of a State. The learned Mohammed JSC stated as follows:

It is in the spirit of the Constitution in ensuring checks and balances between the three arms of government that the role of the Governor in appointing and exercising disciplinary control over the Chief Judge of his State is subjected to the participation of the National Judicial Council and the House of Assembly of the State in the exercise to ensure transparency and observance of the rule of law.

It can be deduced from above that Section 8(1) of the Act cannot be construed as giving unfettered powers to the President to appoint a CBN Governor in a democratic dispensation where all arms of government are expected to work together to uphold the rule of law.

The Act is clear on the position for the appointment of a CBN Governor but goes further to state that the appointment is made subject to the terms and conditions laid down in the letter of appointment. Two pertinent questions come to mind – does the Act by its wording clandestinely elevate the terms and conditions in the letter of employment over and above the provisions of the Act and; how does one treat the terms/conditions in the letter of employment which conflict with the provisions of the Act? These questions have to be answered in order to determine the procedure for the suspension of the Governor. This is because the Act is silent on suspension and it is not clear on whether a lacuna in the Act can be filled by the terms and conditions in the letter of employment.Since Mr. Sanusi’s letter of appointment is not within public domain, it is impossible to determine whether the letter provides for summary suspension on any of the grounds stated in the Press release from the President.

To answer the question of whether the terms of a letter of appointment supersede the provisions of the Act, it is necessary to look at the nature of employment. In Olaniyan v. University of Lagos No. 2 (1985) 2 NWLR (Pt. 9) 599, the Court enumerated three categories of a contract of employment namely: those regarded as purely master and servant; those where the servant holds office at the pleasure of the employer and those whose employment have statutory flavour. It is clear that the appointment of the CBN Governor has statutory flavour because his office is created by statute and there are clear rules that govern the procedure for removal or dismissal. It is submitted that the letter of appointment cannot govern the employment of the CBN Governor where the Act clearly provides for the procedure of his removal andthat must be strictly complied with. The letter of appointment can only be resorted to for matters not expressly provided for under the Act. Thus, if Mr. Sanusi’s letter of appointment contains a term which gives power to the President to summarily suspend him without recourse to the Senate and on whatsoever ground, then the President can act unilaterally.

Whether the term ‘suspension’ in the statement released by the Presidency has the effect of a removal?

For emphasis, it is expedient to reiterate that the power to appoint and suspend a CBN Governor is shared between the President and the Senate. Section 11 of the Interpretation Act Cap I23, LFN 2004 states unequivocally that where a statute confers upon a body the powers to appoint a person to an office, those powers also include the powers to remove or suspend him. As such, where the Act conferred both the President and the Senate powers to appoint the CBN Governor, any act which is targeted to determine his appointment – whether by way of suspension or removal is within the exclusive preserve of the appointing authorities. It is submitted therefore that contrary to popular opinion, the Senate still had to approve the suspension of the CBN Governor.

We will now proceed further to look at the effect of the suspension within the contemplation of the Act. Blacks’ Law Dictionary defines ‘suspension’ as the temporary dismissal of a law or right,or to interrupt or hinder temporarily.Similarly, in Longe v. FBN Plc (2010) 6 NWLR (Pt. 1189) 1 at 60,Adekeye JSC had this to say:

Suspension is usually precluded to dismissal from an employment. It is a state of affairs which exists while there is a contract in force between the employer and an employee, but while there is neither work being done in pursuance of it nor remuneration being paid.

Per Oguntade JSC at p 36 went further to state that:

Suspension is not a demotion and does not entail a diminution of rank, office or position. Certainly, it cannot import a diminution of the rights of the employee given to him under the law.

The foregoing shows that suspension on the face of it does not operate to change the status quo of the person being suspended. It merely suspends the rights and responsibilities of the affected person. By far, the most important consideration is that it does not terminate the contract which is in force between the employer and the employee. Thus, where a CBN Governor is suspended, he is still the CBN Governor pending his removal under the Act. It is instructive to point out that the same press statement which announced the suspension of the CBN Governor nominated the highest serving Deputy Governor to take over his position. Nothing had been mentioned about the suspension being made pending further investigations into the gross allegations made against the CBN Governor. Nothing was also mentioned of a Committee being set up to investigate the Governor for the allegations during the period of his suspension.

Section 11(4) of the Act provides that where a CBN Governor dies, resigns or vacates his office, a fit and proper person shall be appointed to take his place on the Board for the unexpired term of his appointment. A person cannot be appointed to take the place of the CBN Governor except in circumstances where his office is declared vacant. From the cases we considered above, it has been established that suspension does not operate to terminate the appointment of a serving CBN Governor as there is no vacancy in his office during the period of his suspension. In other words, appointing an Acting Governor during the period of suspension seems inappropriate. By so doing, the President was unilaterally determining the appointment of the CBN Governor under the guise of the word ‘suspension’. Section 11 (4) of the Act also contains a proviso that where a person is appointed to replace a CBN Governorfor the remainder of his term in office, the appointment must further be confirmed by the Senate. This procedure was not complied with as the Acting CBN Governor was appointed merely on the pleasure of the President.

Whether the President adhered to the procedure for removal provided under Act?

As seen above, the suspension of the CBN Governor is clogged with several inconsistencies and can only be construed as a removal within the meaning of the Act. As such, it is necessary to determine if the removal was carried in accordance with the due process of law.

The expediency to adhere to due process in the termination of an employment with statutory flavour cannot be over emphasised. In F.M.C IddoEkiti v. Alabi (2012) 2 NWLR (PT 1285) 411 at 460, the Court of Appeal held that ‘where an employee’s employment is one with statutory flavour, the employee may not be disciplined or his employment terminated and or dismissed except in accordance with the rule and regulations governing such employment’.

In the Press Release by the Presidency, it was stated that Mr Sanusi’s suspension was predicated on‘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’.

Section 11 (2) of the Act provides instances where the CBN Governor ceases to hold office. Sub-section (d) provides that the CBN Governor automatically ceases to hold office where he is guilty of misconduct. The operative word is ‘guilty’ which presupposes that there should have been a conviction of guilt after the conclusion of trial before any court or tribunal. It is noted that Mr. Sanusi has not been declared guilty of misconduct where he would automatically vacate his office.

Sub-section (f) provides that the Governor can be removed by the President subject to approval by ‘two-thirds majority of the Senate praying that he be so removed’.It is noted that the Act does not provide grounds upon which the Governor can be removed by the President. It leaves this to the whims of the President. However, to protect the CBN Governor from removal on an illegal ground, the removal is to be approved by the two third of the Senate who are then expected to look into the grounds for the removal.The removal can only be effected after the CBN Governor is investigated and the investigation is confirmed by credible evidence which is then put before the President and the Senate.

In determining whether the activities was characterised by gross misconduct,the CBN Governor should have been probed by the Board of Directors which is required to approve his activities.This would have at least given Mr. Sanusi the right to defend the allegations made against him. This procedure was not complied with before the President suspended the CBN Governor. Rather, the

Conclusion

Despite the barrage of sentimental commentaries that have dominated the scene, this Article has examined the core legal issues surrounding the removal of the CBN Governor. It has established that although the Press Statement from the Presidency stated that the erstwhile CBN Governor was suspended, the effect was a removal within the contemplation of the Act. As such, the procedure laid down under the Act has to be strictly to be complied with because the office of the CBN Governor is clothed with statutory flavour. It has also established that the power to suspend the CBN Governor is not within the exclusive preserve of the President but is also subject to approval of the Senate.

Perspective was given by the Transactional team at Tokunbo Orimobi, LP (TOLP); a commercial law firm in Lagos.