By Misbau Alamu Lateef, PhD.
Interestingly, the “removal” and “suspension,” clearly two different acts, of the Governor of the Central Bank of Nigeria (CBN) by the President must be examined from two different sections 11 of two different laws in Nigeria. First, the CBN Act 2007 and, second, the Interpretation Act 2004. Unfortunately, many who have faulted the suspension of the Governor of the CBN purportedly on a legal ground have focused wholly on the ‘First’ section 11 (CBN Act) and closed their eyes ignorantly or mischievously or both to the ‘Second’ section 11 (Interpretation Act).
First: Section 11 CBN Act 2007
To start with, It is correct law that the CBN Act 2007 regulates the procedures for the appointment and removal of the Governor of the CBN. This is mainly to guarantee or secure the independence of the CBN from reckless or arbitrary political/partisan interference. Thus, the 2007 Act vests the responsibility to appoint and remove jointly in the President and the Senate. At least the rigour of going through multi-layered processes would provide some security of the position of the CBN Governor. This is also consistent with international best practices.
As an aside, It is important to note at this point that while the CBN Act 2007 seeks to protect the CBN and her Governor against arbitrary or reckless political/partisan interference, there is nothing under the Act to protect the society or markets against reckless and irresponsible dabling into partisan politics by the Governor of the CBN. It must have been taken for granted that no governor of the CBN would be so irresponsibly audacious to venture into partisan politics while sitting atop the bankers’ bank and overseing overall monetary policies of the country. Now the society knows better from the recent example of Mr Godwin Emefiele. Perhaps the legislature now needs to amend the CBN Act 2007 to bar the Governor of the CBN from dabbling into and interfering with partisan politics while in office.
Now, back to the main focus of this short piece. So, the CBN Act 2007 vests the powers to appoint and remove jointly in the President and the Senate. To put more appropriately, the President appoints or removes, and the Senate confirms or rejects. On the removal, for example, section 11(2) of the CBN Act provides that the Governor can only be removed by the President with the support of two-thirds majority of the Senate voting in favour of such a request by the President to remove. The grounds for removal under that provision include gross misconduct, corruption, and more.
However, is removal from the office the same as suspension? This brings us to the ‘Second’ section 11 of the other law – the Interpretation Act 2004. But before going into this law, let us quickly make a linguistic detour around the words “removal” and “suspension.”
The verb “suspend,” according to the Oxford Dictionary of English, means to “temporarily prevent from continuing or being in office or force or effect.” I wish to put emphasis on the word ‘temporary’ in that definition. The noun “suspension,” therefore, means doing what the verb says – temporarily stopping someone from continuing in a position or office or situation. The same dictionary defines the noun “removal” variously to mean “the action of taking away or abolishing something unwanted” and “the dismissal of someone from a job.” From the linguistic point of view, it’s clear from the above that suspension and removal do not mean the samething. The former is temporary while the latter is permanent or total.
Second: Section 11 Interpretation 2004
How does the relevant law in the context of the subject of this piece construe the above two words (suspension and removal) or actions turning on their meanings? First, the CBN Act 2007 does not make provision for the suspension of the CBN Governor. The Act merely makes provision for appointment and removal from office. Does that mean the President can only appoint and remove the Governor of the CBN with the concurrence of the Senate and cannot suspend? No! The fact that the CBN Act 2007 does not have any provision on the issue of suspension does not necessarily mean that we cannot turn to or examine other relevant laws for guidance (where necessary). That other relevant law, in this instance, is the Interpretation Act 2004. Now, for general interpretation or construction of laws (i.e., Acts of the National Assembly in particular) in Nigeria, the most specific and authoritative law is the Interpretation Act 2004. Thus, on the exercise of statutory powers and duties vested in authorities in Nigeria, section 11(1)(b) of the Interpretation Act, for example, provides: “When an enactment confers a power to appoint a person either into an office or to exercise any functions, whether for a specfied period or not, the powers include – power to remove or suspend him.”
From the above, it is crystal clear that the disciplinary directive of the President suspending the Governor of the CBN, a public officer subject to the executive powers of the President, is consistent with the provision of the Interpretation Act at least. The suspension does not also in any way contradict the provision of the CBN Act or any other law. But, does the President also need the concurrence of the Senate to suspend? No! There is nothing whatsoever under the CBN Act and the Interpretation Act to support that.
In fact, a May 2014 decision of Gabriel Kolawole (J.) of the Federal High Court (FHC) in a similar case (Sanusi Lamido Sanusi v. President & Ors) decided that the Governor of the CBN is a public officer/servant and can be suspended by the President as a disciplinary measure without the concurrence of the Senate. In other words, the President does not need the concurrence of the Senate to discipline the Governor of the CBN by way of a temporary suspension from office pending an investigation or whatever. What the President cannot do is remove the Governor of the CBN unilaterally. Although the case file in the above case was remitted to the National Industrial Court as the most appropriate forum, the plaintiff (Sanusi Lamido Sanusi) neither pursued nor appealed against the decision of the FHC.
Finally, it must be emphasised that removal and suspension from the office are two different acts of the appointor – the President. If the legislature wanted to include the concurrence of the Senate in cases of suspension from office, they would have stated so expressly under the CBN Act or the Interpretation Act or other laws. Also, the courts would have affirmed so since 2014 or thereafter!
Misbau Alamu Lateef, PhD.