Question of the Legality of the Suspension of the Governor of the Central Bank of Nigeria Without Senate Approval.
By Manfred Ekpe, Esq.
Keywords: sack, remove, suspend, CBN, Constitution, Interpretation Act.
PREAMBLE
On Friday 9 June 2023 the president of Nigeria, Bola Tinubu suspended the governor of the Central Bank of Nigeria (CBN), Mr Godwin Emefiele pending conclusion of investigation into his alleged wrongdoing and mismanagement of the economy. Critics flew into the air immediately reminding President Tinubu of having criticized then President Jonathan for removing the then CBN governor, Mr Sanusi Lamido in 2014 without Senate approval. At the time Tinubu had said that the act of the president was unconstitutional, and impunity.
SUBMISSION
Section 11 of the Central Bank of Nigeria Act 2007 (hereinafter, the CBN Act) provides for the removal of the governor of the CBN from office which must be by Senate approval.
This follows that the president cannot unilaterally remove the CBN governor from office except by Senate concurrence.
HAS PRESIDENT TINUBU REMOVED THE CBN GOVERNOR FROM OFFICE?
The Cambridge Online Dictionary defines removal from office as: “ to force someone to leave an important job or a position of power, usually because they have behaved badly, or in a way that you (the appointer) do not approve of.” (words in brackets, added).
From the above definition, removing the CBN governor from office would equal to sacking him or terminating his appointment. However, from the press release issued from the State House, Abuja, dated 9 June 2023, the president did not remove Mr Godwin Emefiele from office. In the other words, Mr Emefiele has not been sacked as the CBN Governor but only suspended from performing the functions of his office pending investigation into his official activities.
The same Cambridge Dictionary defines “suspension” as: “an act to temporarily stop an employee from working often because they have done something wrong.” Certainly, the action of the president on Emefiele is not removal but suspension,” which from the compound reading and proper construction of the provisions of the constitution and other laws in Pari materia, the president is clothed with the vires to suspend the CBN governor and some other classes of appointive public officer without recourse to the Senate or any authority whatsoever, howsoever. This now takes us to the law enabling the president in that behalf.
POWER OF THE PRESIDENT TO SUSPEND APPOINTIVE PUBLIC OFFICERS.
Section 11 (1) (b) of the Interpretation Act cap i23 LFN 2004 (hereinafter, the Act) provides that the person who is clothed with the power to appoint a public officer to any office shall also have the power to remove or suspend the person from such public office. Howbeit this statutory provision as related to removal from office of certain sensitive public offices includ6the CBN is subject to Senate oversight. But the power as related to suspension is not regulated by any law.
This then transports us in the vehicle of jurisprudential expedition to section 10 (2) of the Interpretation Act which stipulates that when a person is conferred with power to do a duty, and the means by which to do that duty is to be performed has not been prescribed by law, the person so conferred with power shall perform that duty in the manner he deems fit for the duty to be performed.
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.
It is therefore my humble submission that since the Interpretation Act has conferred the on the president power to suspend the CBN governor from office, but the process of exercising that duty is not prescribed, the president can perform that function by Executive fiat at own absolute discretion.
Suffice it to say that had the framers of the constitution envisaged that power to suspend certain appointive public officers should not rest absolutely on the president, they would expressly provide for same but would not remain silent. In my considered view, the expressio unius est exclusio alterius principle of constitutional and statutory construction will be applied in the circumstances, to the effect that the exclusion of suspension in section 11 of the CBN Act concludes that the lawmakers did not intend to include suspension of a CBN governor under Senate approval. This is more so as there is no law, to the best of my knowledge, making the principle of generellia specialibus non derogant to apply in the circumstances since there is no special law providing that suspension of the CBN governor shall require legislative approval.
As afore-chronicled, by the combined reading of sections 8 of the CBN Act and sections 10 and 11 of the Interpretation Act, the president is inured with the powers to suspend the CBN governor on reasonable grounds of serious misconduct pending investigation into such wrongdoing. If found culpable then the president will then proceed to produce convincing evidence to the Senate to approve his removal from office. This reasoning was affirmed by a 2014 case between Sanusi Lamido v. The President and Ors (2014) before the National Industrial Court, which unfortunately, does not fall within the circumscription of stare decisis and Judicial precedent, and can therefore not be cited as case law authority. In that case, the Court held that the president had power to exercise disciplinary measures on the CBN governor including power to suspend him, but lacks the power to remove or sack him without Senate approval.
THE DEFERENCE BETWEEN TINUBU AND JONATHAN’S DEALING WITH THE CBN GOVERNOR.
In 2014 then President Jonathan had reasons to believe that the CBN governor, Mallam Sanusi Lamido Sanusi was working against his Government which led to the outright sack of the CBN governor and an order for his arrest and investigation. However, President Tinubu only suspends the CBN governor then ordered his arrest for investigation. There is a whole world of difference between the two ways in which the two presidents handled the matter.
CONCLUSION
The president of Nigeria has no power to sack the CBN governor without approval of the Senate who also approved his appointment. However, it seems to appear that the president is clothed with the legal paraphernalia to suspend the CBN governor from office pending investigation. This is more so, as the CBN Act makes the CBN Governor answerable to the president and under his exclusive directive.
ABOUT THE AUTHOR
Manfred Ekpe is a lawyer, author. Activist and public affairs commentator.
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