Why Sanusi May Win In Court Against Jonathan… Independent Lawyer Explains
On February 20, news broke that President Goodluck Jonathan had suspended the governor of the Central Bank, Sanusi Lamido Sanusi. Immediately, the president also sent the name of a nominee to the senate for confirmation.
Now, to clear the air on the main issues surrounding the suspension, we spoke to Mr Tolulope Aderemi, senior counsel at Perchstone & Graeys Solicitors. According to the Nigerian constitution, he says, the president might have stretched his powers a little by suspending Sanusi. Read:
The public widely believes that the CBN is supposed to be independent and its governor is supposed to be appointed or removed only by the acceptance of the National Assembly, how right are we to believe this?
It is correct that the autonomy of the CBN cannot be questioned. This is a global practice and Nigeria will not be an exception. Section 3 of the CBN Act (2007) makes clear and unambiguous provision for the autonomous nature of the CBN. This, of course, is for many reasons, chief of which, is to boost investor’s confidence level in the Nigerian market. The independence of the CBN is re-echoed at Section 3 where the Act states as follows: “In order to facilitate its achievement of its mandate under the Act, and the Banks and other Financial Institutions, and in line with promoting stability and continuity in economic management, the Bank shall be an independent body in the discharge of its function.”
This undoubtedly leads me to say that by extension, the autonomy devolves also on the CBN Governor. However, this is not to be read that the CBN Governor is above the law and this is why you see that he must make reports both to the President as well as members of the National Assembly from time to time and at Semi-annual hearings respectively under Sections 4 and 5 of the CBN Act.
The office of the CBN Governor is a creation of Statutes (Section 6(2a) of the Act) and a Governor may ONLY be removed also by the Statute creating it. There is nowhere in the CBN Act where the President is empowered to ‘suspend’ the President. The only place where the word ‘suspension’ was used was with reference to where the Governor is ‘suspended’ by his/her professional body. There is a reason why this provision was not made available. A CBN Governor must have the requisite level of independence, of course within reasonable parameters. This explains why, although the President may appoint the Governor, the National Assembly must ratify such appointment under Section 8 of the Act. The same goes for when such a Governor is to be removed.
Section 11(2)(f) of the CBN Act makes provision for the removal of the CBN Governor subject to the approval by 2/3rd majority of the National Assembly. Unlike the Section just cited above, there is no where else in the CBN Act where the President solely has the power to discipline a CBN Governor.
Tolulope Aderemi ACI Arb(UK), LL.M(Scotland)
The latin maxim Expressio Unius Est Exclusio Alterius which means that the expression of one thing is the exclusion of the other typifies President Jonathan’s powers under the CBN Act. Where the CBN Act does not mention the word ‘suspension’ as now exercised by the President, then, such powers are excluded from those which the President may exercise.
So it’s stated clearly in the constitution that the president may not take such actions as he took on Sanusi
Yes, as I’ve just said. Section 3 of the CBN Act established the autonomous nature of the CBN, Sections 4 and 5 of the Act also re-emphasizes the statutory nature of the office of a CBN Governor. It is one created by Statute and can only be removed also by the same Statute.
Doesn’t the president have veto, or executive powers, to do what he did?
This is one such case where the President may not be able to veto the National Assembly’s decision. It is most unlikely though that both arms of government will disagree on the choice of a CBN Chief. But if it does happen, then the President will have to re-nominate his candidate. I remember sometimes in 2011, a retired Justice of the Supreme Court was nominated as the Chairman of the Independent Corrupt Practices Commission (ICPC), for what the National Assembly termed as ‘reasons of old age’, the Jurist was disqualified. So, in case it does happen, the President will have to re-nominate another candidate.
What do you think of the administration’s move to immediately propose a replacement when the substantive CBN governor is only on suspension, pending an investigation into allegations leading to his suspension?
If President Jonathan followed the due procedure, there is nothing wrong is sending a new CBN Chief’s name to the National Assembly. You will note that the appointment and ratification exercise may take some time. Same for the compliance with other requisite Code of Conduct matters. It does not mean there will be two CBN Governors, it only means there would not be a vacuum when the incumbent vacates the office.
Sanusi has said he would challenge his suspension in court, what kind of case do you think he has?
Unfortunately, with our administration of justice system, Sanusi is unlikely to get any real remedy other than damages for the breach. He, I imagine, will file an Originating Motion (which usually is devoid of evidence taking) and seek the interpretation of the provisions of Section 11 (2) (f) of the CBN Act. The judgment will be one in-rem (in that its effect transcends beyond Sanusi).
He stands a likely chance of reversal of the President’s decision if he comes before a sound and unbiased judge. Nothing in law supports what President Jonathan did on January 20, 2014.
Suppose he wins in court after the National Assembly has confirmed Godwin Emefiele, what would be the next course of action?
The government will simply negotiate any damages awarded to him for the time which he would have been in office but for the wrongful suspension.
The federal government made some serious allegations against Sanusi, bordering on gross disregard for the rule of law and corruption, in what should the CBN be monitored, since it cannot be an independent government to itself in a country of laws?
Sections 4 and 5 of the CBN Act mandate that the CBN Governor briefs both the President and the National Assembly on matters bothering on the performance of the economy as well as the affairs of the economy. The CBN is not a law unto itself. However, it must retain a reasonable level of autonomy to retain investor confidence in Nigeria.
The character and integrity of persons also appointed into the office of a Governor is also very important due to the very sensitive nature of the functions of a CBN Governor.
by Jillur Rahman
Jillur Rahman is a Web designers. He enjoys to make blogger templates. He always try to make modern and 3D looking Templates. You can by his templates from Themeforest.
Follow him @ Twitter | Facebook | Google Plus
No Comment