To the surprise of many, the Central Bank of Nigeria’s Governor Mallam Sanusi Lamido has been suspended by the President. The specific reasons for his suspension are not immediately very clear except that it has been said that his suspension is based on pending “investigations into breaches of enabling laws, due process and mandate of the Central Bank of Nigeria”.
According to the CBN Act, the powers to appoint the CBN Governor starts with the President but must be confirmed by the Senate. Likewise, the President can remove the CBN Governor but such decision must be supported by two-thirds majority of the Senate. Meaning that the President cannot unilaterally remove the CBN Governor. (see Section 11(2)(f) of the CBN Act).
But in this case the President has not removed the CBN Governor de jure, rather the Governor has just been suspended.
The CBN Act does not provide for suspension, except that more often than not, suspension is ancillary to a removal. Having said that, will it be wise to say that the CBN Governor cannot be suspended or disciplined under any circumstance? That would of course be outrageous! But if the Governor is to be suspended or disciplined, under what circumstance can that be done? The CBN Act is silent on that.
Could it be that the action of the Presidency is based on Section 11(2) paragraph (c) of the CBN Act? That provision of the law is to the effect that the CBN Governor shall cease to hold his office if he is guilty of serious misconduct in relation to his duties. I think that provision will also be difficult to apply in the circumstance in that it does not state who has the prerogative of determining when the CBN Governor has been guilty of serious misconduct.
On the legal side, will we categorically say that the Presidency has acted unlawfully? It depends on the side of the divide you choose to fall under. Whether you choose to stand on the strictest application of the law (which would imply that since the Act did not provide for suspension, it is unlawful) or on the application of the law that takes cognisance of certain realities on ground and fills up legal loopholes with the objective reasoning of the ‘common man’ (which would mean that due to the fact that it is absurd to hold that the CBN Governor cannot be disciplined, it could not have even been the intention of the framers to contemplate such a lacuna, then you would say that what the Presidency has done, though not in the letter of the law, it is in the spirit of it, therefore it is lawful).
In justifying the actions of the President, the provision of the Interpretation Act is very instructive. Now Section 11 (1) (b) of the Interpretation Actprovides thus:
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 (b) power to remove or suspend him.
Emphasis mine. This provision is clear enough and it would be a very important weapon in the legal arsenal of the Presidency.
The case of Okomu Oil Palm Co Ltd v. Iserhienrhien also supports this position. In that case, the Supreme Court, in looking at the powers of the Federal Civil Service Commission to appoint a civil public/servant, vis-à-vis the provisions of Section 11 (1) (b) of the Interpretation Act held that it was in accord with the general principle that the powers to appoint implies the power to remove or suspend, so that even where the power to appoint is silent as to the power to remove or suspend, this will be implied.
This will support the argument that it is good law that an employer has the right to suspend his employee.
Sarah Alade has been appointed to act as Acting Governor pending the outcome of investigations. Before now she was Deputy Governor of the CBN in charge of Economic Policy. Her appointment is on a temporary basis so I do not think it needs to comply with Section 8 of the CBN Act with respect to appointment of a Governor.
Many will immediately-and rightly so-draw a nexus between the latest actions of the Presidency and the recent revelations by the now erstwhile CBN Governor of missing oil funds.
Other industry watchers, including myself, will want to point to the fact that there has been a systematic attempt by the Nigerian government to weaken the powers or better put ‘overbearing powers’ of the CBN Governor and this actions will be seen as one of such attempts. Let me also point out quickly that there is a bill presently before the National Assembly seeking to amend the CBN Act of 2007. That bill, if passed, will have far reaching effects on the organisational structure of the CBN especially on the powers of the Governor.
I’m afraid that since the tenure of Lamido Sanusi as CBN Governor ends in June this year, we may have heard the last from him as Governor of the apex bank.