Can New Nigerian President Bola Tinubu Suspend The Nation’s CBN Governor Legally ? www.nairalaw.com

Under Section 11 of the CBN Act 2007, the removal of the CBN Governor can occur under certain circumstances. These circumstances include:

On one side of the argument – is the argument that since the CBN Act does not explicitly give the President the power to suspend the CBN Governor he does not have that power. This is based on a rule of statutory interpretation called the literal rule.

The literal rule means that the words in a statute are given their ordinary and natural meaning, in an effort to respect the will of the Legislature. In this situation therefore since the power given to the President is to remove and not to suspend, then there is no power to suspend.

On the other side of the argument is that if the President has the power to remove (with Senate approval), then by implication he should have the power to also suspend (with Senate approval?), and therefore the power to suspend should be inferred into the CBN Act.

This outcome may be achieved by using the golden rule of statutory interpretation. The golden rule is  a rule which allows the courts to assume that the Legislature intended that its legislative provision have a wider definition than its literal meaning, and so the grammatical and ordinary sense of a word can be modified to avoid the inconsistency or absurdity created by an application of the literal rule, but no farther.

Which is the correct approach that the courts would adopt in this case? The answer is – we do not know.

In 2014, we were presented with a great opportunity to test the law and find out which is the right position. In that year the then President Goodluck Jonathan did the same thing – suspended the then CBN Governor Sanusi on the grounds that there were reports of the Financial Reporting Council of Nigeria and other investigating bodies, indicating various acts of financial recklessness and misconduct.

The then CBN Governor challenged this in court and a Federal High Court declined to rule on it, instead referring it to an industrial court. There is no indication that a separate suit was filed on this – or that an appeal was made.

So, the 2014 episode unfortunately did not resolve this one way or the other – as it does not appear that the case was heard on the merits.

Clarity about whether or not the President should have the power to suspend the CBN Governor is important because it touches on one of the most fundamental issues that touch on the economy – the independence of the CBN.

The independence of a central bank is crucial for the good of the economy – and the country as a whole, as this independence allows it to make decisions based on economic policy rather than political pressure or expediency.

And if the CBN Governor has to be looking over his shoulder afraid of what the President might or might not do – then it is not a good situation for the country.

This ambiguity can only be resolved in one of two ways – either the Legislature amends the CBN Act and clarifies the issue on suspension – and sets out a clear procedure/process to be followed if it allows the suspension of the CBN Governor by the President. Things like – what are the grounds for suspension, who can review the suspension, how long can he/she be suspended for etc., would all be issues that such an amendment would resolve.

The other way it can be resolved, would be for Mr Emefiele to go to court, challenge the decision, and then we let the case move through the courts – from high court, to court of appeal, and finally to the Supreme Court. This would finally determine the issue (maybe after 7 years in the court system!)

It has been in the news that Mr Emefiele has been arrested, and this suggests he is being accused of committing some crimes – if this is the case then we should expect to see something in the news about what he is being accused of soon.

In parallel, it is the responsibility of the National Assembly to hold the President accountable, and so we should hope/expect that the leadership of the National Assembly will be demanding an explanation from the President as to why he took the decision to suspend the CBN Governor.

This way the President knows that he cannot act unilaterally, and is still accountable to the National Assembly.