■ Sagay, Ozekhome, Falana differ on suspension
Barring last minute change in date, a Federal High Court in Abuja will on March 12 begin hearing in the suit filed by Mallam Sanusi Lamido Sanusi challenging hissuspension as Governor of the Central Bank of Nigeria by President Goodluck Jonathan. While the date is still being awaited, the matter has sharply divided the wig and gown profession as much as it has the citizenry across all strata of the society. The Senior Advocates of Nigeria (SANs), who will be filing out on both sides in court, are already at war firing missiles across the divide.
Announcing the suspension of the CBN governor on February 20, President Jonathan had based his action on Sanusi’s alleged “acts of financial recklessness and misconduct which are inconsistent with the administration’s vision of a Central Bank propelled by the core values of focused economic management, prudence, transparency and financial discipline”.
The president also took advantage of his February 25 edition of the Presidential Media Chat to defend his action and denied widely held view that his action was motivated by politics and a personal axe to grind with Sanusi.
Ever since, Nigerians have been taking sides dictated mainly by ethno-religious and political sentiments. Saturday Sun, however, went beyond the views of the ordinary Nigerians to sample the opinions of senior legal minds who will be involved in the fireworks at the court on the controversial matter based on the dictates of the statute books. Their reactions also show that even the SANs won’t agree on this one question: Can President Jonathan unilaterally suspend the CBN governor from office?
Speaking with Saturday Sun, legal luminary, Professor Itse Sagay (SAN) said he could not disagree more with the president on the matter. Sanusi’s suspension, Sagay said, was an exercise of a power beyond the president.
“Both from the point of law and political morality and transparency, the so-called suspension is illegal. If you look at the law, there is no provision for suspension. He (Sanusi) can only be removed subject to the approval of two-thirds of members of the Senate”, he argued.
For Sagay, section 11 of the CBN Act provided for the concurrence of two-thirds of the Senate to remove the CBN governor as a way of protecting and guaranteeing the independence of the office.
“The reasoning behind that provision”, he emphasised, “is to safeguard the independence of the Central Bank. This is in tandem with what obtains in countries like the United States, where the president of the country is in awe of the president of the Federal Reserve Bank. He decides the currency in circulation, the inflationary trend. He is a key player in matters of the economy.”
He added: “The governor of the Central Bank of Nigeria is indépendent and he is adequately protected by law against arbitrary exercise of power and control by politicians.”
Sagay would also not support Jonathan’s action on the political front. Suspending Sanusi at a time he had claimed that the Nigerian National Petroleum Corporation (NNPC) failed to remit a whopping $20 billion to the Federation Account, the professor of law believed, was capable of transmitting signals that the government was not sincere about tackling corruption in the country.
Said Sagay: “This is a man who has raised the alarm over missing $20 billion, an issue that clearly borders on corruption. Suspending or removing him from office can only demonstrate that the government is not serious about fighting corruption.
“Even the Co-ordinating Minister for the Economy, Dr. Ngozi Okonjo-Iweala has come out to say international experts will be invited to conduct investigation on the serious issue of the missing $20 billion. So, in my view, legally, morally and politically, the suspension cannot be justified.”
Activist lawyer, Fred Agbaje, however, sees the raging controversy as a two-way thing. The man who hires, he said, also has the power to fire. Embedded in the power of the employer to fire, he noted, is the power to also suspend.
He, however, faulted the president’s approach to the suspension. Since the president derives his authority to suspend from the broad power to remove the CBN governor, Agbaje stated, Jonathan cannot do so unless he first gets the support of two-thirds majority of the Senate in line with the provision of section 11 of the CBN Act.
Suspending the CBN governor before going to the Senate for its ratification, he said, amounted to putting the cart before the horse.
According to Agbaje, Sanusi’s appointment “is one with statutory favour (protected by law) and as such any step taken against him by the president must fully comply with the requirements of the CBN Act. It is not about whether people like the provisions or requirements of the CBN Act or not; it’s about full compliance with what the law says.”
He went further to say: “No matter how seemingly wide the powers of the president might be under the constitution, there are checks and balances attached to those powers, and one of them is the issue of the appointment and removal of the governor of the Central Bank. The way the president can sack a special adviser is not the same way he can sack the CBN governor.
“The makers of the CBN Act knew the awesome nature of office of the governor of the CBN, therefore, if something was not done to limit the powers of the president, the high office of the CBN governor would be made subservient.
“Since the CBN Act has given the Senate a joint role to play in the discipline of the CBN governor, the president should have first gone to the Senate with the evidence of the allegations for the Senate to consider and give the go-ahead to suspend or dismss him outright.”
Mike Ozekhome (SAN), however, differs with Sagay and Agbaje. For him, Sanusi’s suspension was not only legally defensible, but was also long overdue.
“I whole-heartedly welcome the suspension of Mallam Sanusi Lamido Sanusi as Governor of Central Bank by President Goodluck Jonathan. He cannot fairly hold on to his office while his weighty allegations of missing funds are being forensically audited. Indeed, not only did the suspension come too late, it should also have been one of outright sack or dismissal. I am one of the strident critics of President Jonathan for being too tardy in taking crucial decisions on critical matters that affect the nation. This is one such tardy decision, coming too late”, the lawyer said.
Sanusi, Ozekhome insisted, was intolerably arrogant in power and absolutely disrespectful to President Jonathan.
He queried: “Have you ever heard of the Director of the American Federal Reserve Bank, Janet L. Yellen, making inciting and provocative statements against her appointor, President Barack Obama, or against the Treasury Secretary, or the 31st Governor of the Bank of Japan, Haruhiko Kuroda, or the Governor of the Central Banks of England, Mr. Mark Carney, making statements against their governments? Have you ever read on the pages of newspapers, or watched on the screen, these governors recklessly and openly flirting with the opposition parties, allying with their views, as against those of the government of which they directly form a part and parcel?”
For the lawyer, Sanusi’s “proud, highfalutin carriage, strutting about in flowing garments with a heavy turban, like an emir, that we hear he aspires to be, in his native Kano without any official or informal denial or denouncement of the speculations, even when the incumbent Emir of Kano Emirate, Alhaji Ado Bayero that he hopes to succeed, is very much alive, hale and hearty, his soapbox speeches and theatrics, his rampant strident condemnation of a government he forms part of, and his overt contempt and disdain for his appointor, the president, did not accord his office the dignity, sobriety and calmness it deserves. “In a decent society, Sanusi would have resigned immediately he discovered he haboured fundamental disagreement and irreconcilable difference with the government he serves. But he selfishly held on to his position, neither relinquishing it, nor conforming with it”, he added.
Disagreeing with those who believe Jonathan cannot legally suspend the CBN governor, Ozekhome stressed: “It is trite that he that hires can fire.
The CBN Act did not specifically talk about suspension. It did not prohibit it either. Dismissal, which must be endorsed by the Senate, has to first be preceded by suspension, which does not require Senate approval. The CBN Act did not say that Sanusi can never be suspended no matter his transgressions. The law is that what is not prohited or forbidden is allowed.
“It is therefore my respectful submission that the president was right, legally, morally and constitutionally, to have suspended Mallam Sanusi Lamido Sanusi as Governor of CBN. Not to have done so would have been tantamount to creating a sacred cow, or a Frankenstein monster out of a non-conforming government employee with an over-bloated ego and who fights his own government with éclat and Joy.”
“The president could have easily removed Lamido from office under Section 11 (2) (C) of the CBN Act, if he so desired. This would be justified as the section permits removal based on ‘serious misconduct’. Can anyone argue that the copious infractions of the law by Sanusi earlier enumerated above do not constitute serious misconduct? Are we going to allow a tyrannical majority or a vociferous minority that controls the media becloud our true sense of judgement, or even humanity?”, he asked.
He dismissed the view that suspending Sanusi before approaching the Senate for its approval was putting the cart before the horse.
“All that is required for dismissal,” he said,”is two-thirds majority vote of the Senate. But the president has to first ‘remove from office’ before he can request the Senate to approve the removal.
What the CBN Act provisions, therefore, boil down to is that the president can remove Sanusi from office following due process; or suspend him, following no process at all since the Act suffers a lacuna in this regard.
If Sanusi is unhappy with his suspension by President Jonathan, he has two options: go to court for adjudication; or appeal to the National Assembly to amend the CBN Act.”
Femi Falana (SAN) also does not stand with Sanusi on the matter. The suspended CBN governor should have resigned once President Jonathan asked him to toe that path, Falana said.
For daring the president by holding on as the boss of the apex bank, the lawyer said, Sanusi deserved the fate of suspension that eventually became his lot.
His words: “Having regard to his irreconcilable differences with the Jonathan administration on the operation and management of the Federation Account, Mr. Sanusi ought to have voluntarily resigned his appointment. But he decided to remain in office while taking the administration to the cleaners at the tail end of his five-year tenure.
To that extent, Mr. Sanusi has himself to blame for his suspension from office on account of alleged financial recklessness.”
He, however, faulted Jonathan’s nomination of Sanusi’s successor while the former’s tenure was yet to end.
“Since Mr. Sanusi has been placed on suspension”, he argued, “the law presumes that he is still the substantive governor of the CBN. Therefore, pending the end of his tenure or removal from office through the Senate, there is no basis for the appointment of a new CBN governor.”
Source: Sun
