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THE NATION TUESDAY, FEBRUARY 25, 2014
LAW COVER CONT’D
Can Jonathan suspend CBN Governor Sanusi?
•Jonathan
•Sanusi
•Prof. Oyebode
•Continued from page 25 differed with the President over the suspension of the CBN Governor, Sanusi. But the likes of Prof. Itse Sagay (SAN), Prof. Taiwo Osipitan (SAN), Mike Ozekhome (SAN) and Rotimi Ladi-Williams (SAN), argued that Jonathan acted within his purview, going by the fact that Sanusi was suspended and not removed. Conceding that the CBN Act does not provide for suspension by the president, they noted that it also did not say the president, being Sanusi’s boss cannot ask him to step aside for an investigation to be conducted. Oyebode posited that the President, by his action, has only shot himself in the foot since there would certainly be political costs arising therefrom, aside from other unintended consequences... But Quakers argued that a governor is expected to furnish the president with information as regards the affairs of the bank and the
budget of the government pursuant to Section 8(5)(a), just as he noted that Sanusi’s suspension or sack was not unconnected with the act of whistle blowing on his part and by extension embarrassed the government and the office of the President. To Ozekhome and Williams, the suspension was long overdue following Sanusi’s errant behaviours and gross insurbodination. Ozekhome said the exchange rate of naira to dollar hit its poorest between N165 to N175 per dollar under Sanusi’s tenure. “Constitutionally and legally, what the president did is correct and he does not require the consent of the National Assembly to do so. Anyone who is an employee has to know that he is answerable to his employer. You cannot bite the finger that feeds you. “People should look at this from all sides, it is easy for people to say Sanusi’s suspension was because he revealed some issues, but no, this is not it,” argued Ozekhome. Constitutional lawyer, Fred Agbaje, wondered whether the allegations against Sanusi were weightier than the issue of gross corruption in the NNPC particularly, the issue of non accounted 20 billion dollars. “The CBN and its staff including its Governor are governed by the CBN Act. Has the President complied with the CBN laws in taking his decision? No. Therefore, what the president has done amounts to a constitutional nullity and a gratuitous violation of the CBN Act, as well as a threat to the rule of law around which our democracy revolves. Two third majority as demanded by the CBN Act is to guarantee separation of powers and avoid abuse of powers,” he said. Ubani remarked that the immediate nomination of another candidate for screening by the Senate when the president was purported to have suspended Sanusi, gave the president and his advisers away as having acted illegally. ‘‘If it is suspension as they want us to believe pending conclusion of investigation, why the hurry to screen a successor? If it is true that Sanusi has committed financial recklessness as alleged, then the security agencies ought to have been invited to investigate, and if they found any shred of evidence against him, then his prosecution should have commenced immediately. That EFCC, ICPC or the Police is not invited to investigate these monumental allegations of financial impropriety as alleged beats my imagination or is the presidency saying it has no confidence in the security agencies by its action? ‘‘If this is allowed to stand, it sets a dangerous precedent as any governor of Central Bank can be so accused and chased out of the seat at any time. The President has tried it with the former president of the Court of Appeal, Justice Ayo Salami (rtd) and got away with it and he has tried it now with the governor of CBN and he should not be allowed to get away with this. It is a dangerous precedent,’’ he said. Former chairman, NBA, Ikorodu Branch, Prince Kazeem Adebanjo said the suspension of Lamido as the CBN Governor was not only unprocedural, but illegal in view of the clear provision of the CBN Act. The President was simply being clever by half by announcing ‘suspension’ rather than ‘removal’. The relevant law gives no room for suspension. He argued that the draftsmen of the law clearly foresaw the plausibility of the current situation wherein the President becomes political in his dealings with the CBN (which symbolises the Nation’s commonwealth). Assuming but not conceding that the erstwhile Governor actually committed the ‘crimes’ (weighty ones for that matter) as alleged by the President, one expects him to have proceded by way of instituting a probe panel, which would have afforded Nigerians the opportunity of deciding whether or not to trust Lamido with any public office in the future more so in view of the latter’s recent revelation on the NNPC. This, he said, the President has failed to do, leaving us to wonder if the CBN can be dealt with as a personal estate of any President. As bad as this appears precedence-wise, it is not the first of its kind in the lifetime of this administration as he recalled
with regrets, the circumstances that led to the ouster of the immediate past President of the Court of Appeal, Hon. Justice Issah Ayo Salami. Lagos lawyer, Iwilade Akintayo argued that the provisions of Section 11 (2) of the extant CBN Act clearly contemplates tenure certainty for a CBN Governor- subject of course to the proviso that he may only be removed by the President, upon the concurrence of ‘twothirds’ majority of the Senate. It thus stands to reason that whatever will tamper with a CBN Governor’s tenure of office, whatever semantic coinage anybody chooses to adopt, should first be tabled before the Senate for approval on a ‘two-thirds’ majority basis. In the present case, it is mischievous to argue that ‘suspension’ does not amount to ‘removal’ within the contemplation of the said Section 11(2) of the CBN Act. They are one and the same. Iwilade pointed out that it was obvious, from a cumulative reading of the CBN Act, the Legislature contemplated an independent CBN and a Governor, directly answerable, not to the President of Nigeria per se, but to the Bank’s Board in the day to day discharge of his duties. “While the Act did not aim to create an autocratic or sovereign CBN Governor within a sovereign nation, it provided for a stringent and open process of bringing any erring CBN Governor to account by mandating that his removal shall be with the approval of twothirds majority of the Senate. Clearly, the manner Mr. Sanusi Lamido Sanusi was removed (though disingenuously termed ‘suspension’ which in effect also means removal, even if temporary), clearly runs foul of this legislative intention”, he said. He said the proper approach that accords with the rule of Law would have been for the President to submit the report, of the allegations of “various acts of financial recklessness and misconduct” leveled against the governor, to the Senate and with a formal request that the Senate should consider the report and approve Mr. Sanusi’s suspension as being proposed by the President. That way, the intention of openness, institution building and noninterference intended by Section 11(2) of the CBN Act would have been complied with. Even at that, if the Senate considers the allegations unfounded or that the CBN Governor was wrongly indicted, then the request for his suspension will be rejected while he will remain validly in office and vice-versa. Activist lawyer, Debo Adeniran said Jonathan has proven he is above the law by not approaching the Senate first or waiting for its confirmation before taking actions against Sanusi for his alleged offences. ‘‘One is tempted to ask if the president has some other things he would not want Sanusi to reveal should he stay in office a day longer. President Jonathan was so quick to suspend the CBN Governor, levelled grievous allegations against him and immediately sought a replacement. ‘‘Sanusi’s suspension indicates the plight of an average whistleblower in the country. The regime takes joy in dealing roughly with the few upright ones still associated with it. Even if there are allegations of financial recklessness against the man, why not wait until he is found guilty by the court of law? ‘‘It is worrisome that the president who could not monster enough courage to suspend erring officials in his cabinet could just develop strength overnight...It is absurd that the country glorifies its worst and disgraces its best.
The way out
From the diverse legal interpretations opinions that have followed the President’s action, it has become clear that there is a lacuna in the extant laws, which either sides apply to suit their desire. Hence, the need for either an amendment of the CBN Act or a Supreme Court judgment on the issue to forestall future controversies has been recommended. Ubani called for the review of the Central Bank Act, adding that annual expenditure of the CBN should be appropriated by the National Assembly at all times. ‘‘The issue of disciplining the CBN governor should be well spelt out to avoid situation like
‘ ‘
the President, by his action, has only shot himself in the foot since there would certainly be political costs arising therefrom, aside from other unintended consequences
•Sagay
•Ubani
what just happened. The Central Bank Governor’s job is a secured one for obvious reasons. No matter what is the situation, the procedures prescribed by law should be followed religiously in taking action against whosoever is occupying that position, including a mad man, even if the system is stupid enough to have allowed a mad man into that position in the first place,” said Ubani. Agbaje said there is need for the National Assembly to further amend the CBN Act to make the CBN Governor subjected only to the control of two third majority of the Senate so as to insulate the governor from undue executive interference. To Odele, it was unexpected of the president in a democracy to explore the ‘‘little lacunas in laws. It is the duty of the courts to interpret the scope of that section, however in a democratic society exploiting lacunas in laws is unexpected of a legitimate leader’’. Prince Adebanjo hoped that the National Assembly would rise to the occasion by refusing to approve in advance the appointment of a new Governor. “They cannot afford to fail in this patriotic duty once again. Discerning Nigerians are left in no doubt that Lamido was more of an activist while in office but are more convinced that the President’s action was less than altruistic”. Iwilade pointed out that the issues here go beyond anybody’s love or hatred for the ‘suspended’ Governor’s guts or the usual political harvest hunting by politicians who are hardly better than incumbents they purport to criticise or replace. To him, “if there are genuine allegations of Statutory infractions against the Governor, same should be fairly and very impartially investigated. “But the misinterpretation of Section 11(2) of the CBN Act must be definitively decided and the rule of law made to triumph since it goes to the heart of Nigeria’s imperative of building its institution. “ Nigeria lost an opportunity to assert the full independence of the Judiciary with the embarrassingly sad inconclusiveness of Justice Salami’s case till he reached his statutory retirement age. One hopes some useful lessons were learnt from that. But now that the opportunity to assert the independence of the apex financial institution is again here, we hope the institution will eventually be saved for today, and the next generation”. Adeniran said the Act should be reviewed to address the lapses.