President Jonathan Did Not Err In Suspending Sanusi, A Legal Opinion By Nana Nwachukwu (READ)

by Nana Nwachukwu

On the 20^th of February 2014, the Presidency announced the suspension of Mallam Sanusi Lamido Sanusi, the Governor of the Central Bank of Nigeria. There has been outrage, analysis etc. following the suspension.

The major issues which stand out are as follows;

1. Does a suspension amount to a removal?
2. Does the President have the power to suspend the Central Bank Governor?
3. If Yes, is the rationale or reasons adduced by the Presidency sufficient to suspend the Central Bank Governor given that the reason were based on a report by the Financial Reporting Council of Nigeria?
4. Is the presentation to Senate and ratification of a Central Bank Governor imply that Sanusi has been sacked?

I will attempt to throw some light on these issues.

Does a suspension amount to a removal?

The Oxford dictionary defines a suspension as to “officially prohibit (someone) from holding their usual post or carrying out their usual role for a particular length of time”[1].

It also defines a ‘Removal’ as “the dismissal of someone from a job”[2].

Literarily speaking, a suspension is temporary while a removal is permanent therefore, they are separate issues.

An official can be suspended if the office he occupies is being investigated pending the outcome of the investigation. This in law follows the principle of equity ‘Nemo judex in causa sua’ which literarily means that one cannot be a judge in one’s case. This is done to prevent interference with the investigations in form of intimidations, cover-ups etc. However, these reasons are not exhaustive.

In suspending, removing or dismissing, the rule of law must be adhered to. This brings us to the next issue.

Does the President have the power to suspend the Central Bank Governor?

It may shock you but then yes, the President indeed has the power to suspend the CBN Governor. The CBN Act described the procedure for the appointment of the CBN Governor in Section 8 (1) [section reproduced below]

“8. (1) The Governor and 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 appointment.”[3]

Now, the law states that where a person has statutory power to appoint a person, he also has an implied statutory power to suspend or remove the person appointed. See Section 11 of the Interpretation Act Cap 192 LFN 1990 [reproduced below].

“11. (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; [emphasis is mine]

(c)     power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint,-

(i)     to reappoint 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.”[4]

Now where the conflict comes is this, the President’s power to appoint the Central Bank Governor is exercised jointly with the Senate. The President appoints, the Senate ratifies. The same thing goes for the removal of the CBN Governor, the president notifies the Senate and IF he gets a 2/3 majority, then the CBN Governor would be considered removed or dismissed as it is. [Section 11(2)(f) CBN Act)

Now the lacuna exists, should the President’s power to suspend the CBN Governor be exercised arbitrarily or alongside the Senate?

Now interestingly, Section 10 of the Interpretation Act has this to say;

“10.    (1)   Where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires.

(2)     An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.” [Emphasis is mine]

It has been established that the President has the statutory power to suspend the CBN Governor. Should he have exercised it alongside the Senate? Not necessarily. Section 10 of the Interpretation Act appears to be of the opinion that the proviso to Section 11 (2)(f) of the CBN Act expanded and not limited the powers of the President.

This means that given that the President has the power to suspend the CBN Governor, and that a Suspension is not tantamount to a removal or a dismissal, it is however not covered by Section 11(2)(f) of the CBN Act and where a President has such statutory power as the power to suspend, then Section 10 of the Interpretation Act[reproduced above] would fill in such a lacuna.

The above propositions are yet to be tested in a Nigerian Court but are however logical.

Is the report by the Financial Reporting Council of Nigeria tenable?

Yes. The establishing Act of the FRCN explains its functions clearly in Section 8[5]. The Central Bank of Nigeria is a Public Interest Entity as defined by the same FRCN Act and as such, the FRCN can exercise such functions as listed in Section 8 of the FRCN Act over the CBN. It is alleged that the report by the FRCN indicated large sums spent without clarity and purpose implying misappropriation of funds.

A new CBN Governor is presented to the senate, does it means Sanusi is sacked?

No, not at all. Sanusi Lamido Sanusi’s term is to expire on the 3^rd of June, 2014 which is some months from now. The suspension and the ratification are simply incidents taking place at the same time which are exclusive of each other. The procedure for the appointment of a new CBN Governor is clearly outlined in Section 8 of the CBN Act.

Personally, I believe it is dangerous for the law to allow arbitrary power to be exercised particularly where the economy is concerned and in the same vein, I strongly believe that the position of the CBN Governor is such that it should be legally impossible for the holder of such a position to be politically aligned.

The above reflects my legal opinion and thoughts. Contrary arguments are welcome.

Nana Nwachukwu tweets from @PUREHAIRE

References

[5] <https://www.financialreportingcouncil.gov.ng/attachments/category/14/FINANCIAL%20REPORTING%20ACT.pdf> accessed 22^nd February, 2014

The opinions expressed in this article are solely those of the author.