Secondly, it is our position that the CBN Governor has breached the provisions of the Code of Conduct for Public Officers, by registering as a member of the APC ...
This intervention seeks to discuss and determine two interrelated issues. The first issue is whether the Governor of Central Bank of Nigeria (CBN), is permitted by law, during his term of office, to engage in partisan politics, become a registered member, an unregistered member or sympathizer of a political party, and/or participate in the primary election of a political party with a view to contesting for an elective political office or securing an appointment into a non-elective political office.
The second issue is whether the incumbent Governor of the CBN who, personally, and through proxies, support groups and allies, is currently running a political campaign to participate in the upcoming presidential primary election of the All Progressive Congress (APC), in order to possibly clinch the ticket of the APC, and for whom an APC Expression of Interest and Nomination Form for the Office of President of the Federal Republic of Nigeria, in the sum of One Hundred Million Naira, has been bought (allegedly by millionaire farmers), and who has been confirmed to be a registered member of APC as far back as February 2021, is not guilty of an act of serious misconduct, and not in blatant breach of the provisions of the Constitution of the Federal Republic of Nigeria, the CBN Act and the Code of Conduct for Public Officers, on the grounds of which the Senate of the Federal Republic of Nigeria ought immediately to commence proceedings for his removal from office, and for the President to exercise the power to remove him from office forthwith.
In discussing and resolving the formulated twin issues for determination, we must inevitably turn to the provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the Central Bank of Nigeria Act, No 7 of 2007, Cap C4, Vol I, Revised Laws of the Federation of Nigeria (LFN) 2004, Code of Conduct Bureau and Tribunal Act, Cap. C 15, Vol. II, Revised LFN, 2004, and Public Service Rules, 2008 Edition.Law.
The CBN Act.
Section 1 of the CBN Act establishes the CBN. Section 1 (3) provides that "in order to facilitate the achievement of its mandate under this Act and the Banks and Other Financial Institutions Act, and in line with the objective of promoting stability and continuity in economic management, the Bank shall be an independent body in the discharge of its functions"
Section 7 (1) of the CBN Act provides for the management of the Bank and it states that "the Governor or in his absence, one of the Deputy Governors nominated by him, shall be in charge of the day-to-day management of the Bank and shall be answerable to the Board for his acts and decisions".
Section 8 (1) of the CBN Act provides that "the Governor and Deputy Governors shall be persons of recognized financial experience and shall be appointed by the President subject to confirmation by the Senate on such terms and conditions as may be set out in their respective letters of appointments".
Section 9 of the CBN Act provides that "the Governor and the Deputy Governors shall devote the whole of their time to the service of the Bank and while holding office shall not engage in any full or part-time employment or vocation whether remunerated or not, except such personal or charitable causes as may be determined by the Board and which do not conflict with or detract from their full-time duties".
Section 11 (1) of the CBN Act provides that "a person shall not remain a Governor, Deputy Governor or Director of the Bank if he is - (a) a member of any Federal or Legislative House; or (b) a director, officer or employee of any Bank licensed under the Banks and Other Financial Institutions Act."
Section 11 (2) of the CBN Act provides that:
"the Governor, Deputy Governor or Director shall cease to hold office in the bank if he-
(a) becomes of unsound mind or, owing to ill-health, is incapable of carrying out his duties;
(b) is convicted of any criminal offence by a court of competent jurisdiction except for traffic offences or contempt proceedings arising in connection with the execution or intended execution of any power or duty conferred under this Act or the Banks and other Financial Institutions Act.
(c) is guilty of serious misconduct in relation to his duties under this Act
(d) is disqualified or suspended from practicing his profession in Nigeria by order of a competent authority made in respect of him personally;
(e) becomes bankrupt;
(f) is removed by the President:
provided that the removal of the Governor shall be supported by two-thirds majority of the Senate praying that he be so removed."
Section 11 (3) provides that "the Governor or any Deputy Governor may resign his office by giving at least three months' notice in writing to the President of his intention to do so and any director may similarly resign by giving at least one month's notice in writing to the president of his intention to do so."
The Code of Conduct for Public Officers in the Fifth Schedule to the Constitution; and the Code of Conduct Bureau and Tribunal Act.
Section 2 of Code of Conduct Bureau and Tribunal Act, Cap C 15 Vol. II, Revised LFN 2004 provides that "the aims and objectives of the Bureau shall be to establish and maintain a high standard of morality in the conduct of government business and to ensure that the actions and behaviors of public officers conform to the highest standards of public morality and accountability."
Section 5 of the CCB&T Act provides that "a public officer shall not put himself in a position where his personal interest conflicts with his public duties and responsibilities".
Section 14 of the CCB&T Act provides that "a public officer shall not be a member of, or belong to, or take part in any society, a membership of which is incompatible with the functions or dignity of his office (See also identical provisions in Paragraphs 1 and 10 respectively, of the Code of Conduct for Public Officers in Part 1 of the Fifth Schedule to the Constitution of the Federal Republic of Nigeria, 1999).
Section 26 of CCB&T Act is the Interpretation Section of the Act. The Section provides that "'public officer' means a person holding any of the offices specified in the Second Schedule of this Act". The said Second Schedule lists public officers for the purposes of the Code of Conduct. Listed in Paragraph 14 are "chairmen and members of the Boards or other governing bodies and staff of the statutory corporations and of companies in which the Federal or any State Government has controlling interests. (See also Paragraph 14 in the list of public officers for the purposes of the Code of Conduct, in Part II of the Fifth Schedule to the Constitution).
Section 318 of the Constitution is the Interpretation Section of same. It provides, inter alia, that " Public Service of the Federation" means the service of the Federation in any capacity in respect of the Government of the Federation, and includes service as- ( c) member of staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly; ( e) staff of any statutory corporation established by an Act of the National Assembly; or ( g) staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interest"
By virtue of Section 1 of the CBN Act, the CBN is wholly owned by the Federal Government of Nigeria. The CBN is established for Nigeria. It is a government body which has an appointed Board of Directors under Section 6 of the CBN Act, a section which provides that the Board shall consist of, amongst other members, a Governor who shall be the Chairman. See Section 6 (2) (a) of the CBN Act. Under Section 8(2) of the CBN Act, the CBN Governor has a renewable term of five years, not exceeding ten years in two terms. The CBN Governor is an appointed public officer in the public service of the Federation of Nigeria.
Without any doubt, therefore, the CBN Governor is a public officer within the contemplation of, and definition thereto ascribed under Paragraph 14 of the Second Schedule to the CCB&T Act. The CBN Governor, is by law, required and obligated to observe the provisions of the Code of Conduct.
Constitution of the Federal Republic of Nigeria, 1999
Section 40 of the Constitution of the Federal Republic of Nigeria made under Chapter 4 of same which provides for the fundamental rights enshrined in the Constitution, states that "every person shall be entitled to assemble freely or may form or belong to any political party, trade union or any other association for the protection of his interest."
Section 45 (1) of the Constitution provides that "nothing in Section 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of defence, public safety, public order, public morality; or (b) for the purpose of protecting the right and freedom of other persons."
Section 137 (1)(g) of the Constitution provides that "a person shall not be qualified for election to the office of the President if being a person employed in the civil or public service of the Federation of any State he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election."
Section 172 of the Constitution provides that "a person in the public service of the Federation shall observe and conform to the Code of Conduct".
Section 222 (b) of the Constitution provides that "no association of whatever name called shall function as a political party unless-the membership of the association is open to every citizen of Nigeria, irrespective of the place of origin, circumstance of birth, sex, religion or ethnic grouping.
Federal Government Public Service Rules, (2008 Edition), Published in the Federal Republic of Nigeria Official Gazette, , No. 57. Vol 96, issued in Abuja on 25th August, 2009 as Government Notice No. 278 2009
Chapter 1, Rule 010101 says that "it shall be the duty of every officer to acquaint himself/herself with the Public Service Rules, other regulations and extant circulars. These Public Service Rules apply to all officers except where they conflict with specific terms approved by the Federal Government and written into the contract of employment or letters of appointment. In so far as the holders of the... ..and any other similar organs that derive their appointments from the Constitution of the FRN are concerned, the Rules apply only to the extent that they are not inconsistent with the provisions of the Constitution of the FRN in so far as their conditions of service and any other law applicable to these other officers are concerned."
It is our submission that the provisions of the Public Service Rules (PSR) are applicable to the position of the CBN Governor. Elsewhere, we had strenuously argued that the Public Service Rules did not apply to that office and position. But having looked at the CBN Act, again, and realizing that there is no provision therein, excluding the applicability of the Public Service Rules, and since there are no conflicts between the provisions of the PSR and provisions of the CBN Act, and the conditions of service of the CBN Governor, we are persuaded very strongly to submit that the Public Service Rules do apply to the office of the CBN Governor.
Chapter 3 of the Federal Government Public Service Rules makes provisions for "Discipline". In particular Section 4 thereof provides for "serious misconduct".
Rule 030401 thereunder states that: "Serious misconduct is defined as a specific act of very serious wrong doing and improper behavior which is inimical to the image of the service and which can be investigated and if proven may lead to dismissal."
Rule 030402 provides that "serious act of misconduct includes, amongst other listed incidents, "(g) engaging in partisan political activities, (o) action prejudicial to the security of the State, (r) nepotism or any other form of preferential treatment, (s) divided loyalty and (w) any other act unbecoming of a public officer."
Under Rules 030403, 030404, 030405 & 030406, disciplinary procedure may be instituted against any public officer in accordance with Rules 030302-030306 and interdiction and suspension may follow. Under Rule 030407, it is provided that "the ultimate penalty for serious misconduct is dismissal. An officer who is dismissed forfeits all claims to retiring benefits, leave of transport grants, etc, subject to the provisions of Pension Reforms Act 2004."
Rule 030422 provides that "no officer shall, without express permission of the government, whether on duty or leave of absence: (a) hold any office, paid or unpaid, permanent or temporary in any political organization (b) offer himself/herself or nominate anyone else as a candidate for any elective public office, including membership of a local government council, state or national assembly (c ) indicate publicly his support of, or opposition to any party or candidate or policy (d) engage in canvassing in support for political candidate; and (e) nothing in this rule shall be deemed to prevent an officer from voting at an election".
Rule 030423 provides that "resignation is necessary before seeking elective public office. Howbeit, any officer wishing to engage in partisan political activities or seek elective public office shall resign his/her appointment forthwith."
Submissions
Based on the above cited provisions of the Constitution, Acts of the National Assembly, and the provisions of the Federal Government Public Service Rules, we are strengthened in making the following submissions, and fortified in calling for the immediate removal of Godwin Emefiele, the CBN Governor, from office.
Firstly, it is our considered view that on a calm and dispassionate reading and construction of the provisions of the CBN Act, it is not the intendment of the Legislature that a CBN Governor should be a registered or a closet, unregistered member of a political party while holding the office of the CBN Governor. Section 1 of the CBN Act declares that the CBN shall be an independent body in the discharge of its functions. This safeguarded independence, certainly, is lost when a CBN Governor becomes a member (registered or unregistered) of a political party, especially the party in power and in control of the Federal Government of Nigeria. This independence is surrendered when the CBN Governor enters into partisan politics and becomes yoked umbilically with the ruling political party.
The CBN Act does not contemplate, let alone tolerate or accommodate, a CBN Governor, who is obligated by law to devote all his time while in office to the pursuit of the mandate of the CBN, being a registered member of any political party in Nigeria, and certainly does not accept a CBN Governor running for a legislative or executive political office during his term of office as CBN Governor.
Section 9 of the CBN Act states that "the Governor and the Deputy Governors shall devote the whole of their time to the service of the Bank and while holding office shall not engage in any full or part-time employment or vocation whether remunerated or not, except such personal or charitable causes as may be determined by the Board and which do not conflict with or detract from their full-time duties". It is our contention that by reportedly registering clandestinely as a member of APC-a political party-, since February 2021 and participating in its activities, the CBN Governor has blatantly engaged in a vocation that conflicts with or detract from his full-time duties. Obviously, thus politically distracted, the CBN Governor, we must presume, has not been in charge of the day-to-day activities of the CBN, contrary to the provisions of Section 7 of the CBN Act. The CBN Governor, therefore, has breached the duty imposed on him by Sections 1, 7, and 9 of the CBN Act: a duty not to subvert, undermine, mortgage or destroy the independence of the Bank, and a duty to devote his full time to the work of the Bank without engaging in any other vocation, which has not been approved by the Board, and which is not in conflict with or detract from his full-time duties. Certainly, the Bord of the CBN did not pass a resolution authorizing the CBN Governor to register as a member of the APC, and contest the presidency on its platform. The CBN Governor's membership of APC is in conflict with and detract from his full-time duties.
Secondly, it is our position that the CBN Governor has breached the provisions of the Code of Conduct for Public Officers, by registering as a member of the APC, campaigning, by proxies and support groups, to be elected as a candidate in the 2023 Presidential Elections, in order to possibly get elected as President of Nigeria, while in office as CBN Governor.
Section 2 of Code of Conduct Bureau and Tribunal Act, Cap C 15 Vol II, Revised LFN 2004 provides that "the aims and objectives of the Bureau shall be to establish and maintain a high standard of morality in the conduct of government business and to ensure that the actions and behaviors of public officers conform to the highest standards of public morality and accountability". Clearly, the abhorrent acts of the CBN Governor do not conform to the highest standards of public morality and accountability in a public office as high as, and as central to the Nigerian economy as the office of the CBN Governor. For those who argue that "law is no morality", what is written into the Code of Conduct as a binding law is the codification of public morality. The CBN Governor, clandestinely became a member of the APC in violation of the provisions of the CBN Act, without disclosures. There was no transparency and accountability. His action is immoral and is a breach of the provisions of the Code of Conduct.
Section 172 of the Constitution provides that "a person in the public service of the Federation shall observe and conform to the Code of Conduct". The CBN Governor, a public servant, under the Code of Conduct provisions in the Constitution, has not observed nor conformed to the Code of Conduct.
Section 5 of the CCB&T Act provides that "a public officer shall not put himself in a position where his personal interest conflicts with his public duties and responsibilities".
Section 14 of the CCB&T Act provides that "a public officer shall not be a member of, or belong to, or take part in any society, a membership of which is incompatible with the functions or dignity of his office (See also identical provisions in Paragraphs 1 and 10 respectively, of the Code of Conduct for Public Officers in Part 1 of the Fifth Schedule to the Constitution of the Federal Republic of Nigeria, 1999). Clearly, the CBN Governor breached these provisions of the Code of Conduct. It must be assumed that the functions of the CBN, particularly in monetary policy issues, have been subordinated to the interests of the APC, the CBN Governor's political party. The CBN as an entirety will in the coming days be used to promote the interests of the CBN Governor and his party, if he is allowed to stay in office, whether he rests his offensive partisan politics pursuit or not. 2023 Election is coming and the CBN, apart from disbursing appropriated elections funds to INEC, warehouses sensitive election materials for INEC. There is clearly a real and potential conflict of interests. The CBN Governor has become a full-fledged politician in public service, pursuing a personal interest in obvious conflict with his public duties. Possible Sabotage of the public interest looms.
Thirdly, we submit that the right to peaceful assembly and association under Section 40 of the Constitution which guarantees that "every person shall be entitled to assemble freely or may form or belong to any political party, trade union or any other association for the protection of his interest." is not absolute and unfettered.
Section 45 (1) of the Constitution provides that "nothing in Section 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of defence public safety, public order, public morality; or (b) for the purpose of protecting the right and freedom of other persons."
As stated under Section 2 of Code of Conduct Bureau and Tribunal Act, Cap C 15 Vol. II, Revised LFN 2004 "the aims and objectives of the Bureau shall be to establish and maintain a high standard of morality in the conduct of government business and to ensure that the actions and behaviors of public officers conform to the highest standards of public morality and accountability. We submit that the provisions of the CCB&T Act, CBN Act, and the Public Service Rules, which restrict the right of pubic officers (and in particular, the CBN Governor) to engage in partisan political activities while in employment of Government, are not inconsistent with the provision od Section 40 of the Constitution, and thus cannot be voided under Section 1(3) of the Constitution.
We, therefore, contend that by virtue of Section 45 (1) of the Constitution- the restriction and derogation provision, provisions in Acts and Laws which restrict the right of public officers to fully enjoy the right to freedom of assembly and association, including joining political parties of their choice, are Acts and Laws validly made which cannot be invalidated or annulled on account of any alleged inconsistency with the provision of Section 1 (3) of the Constitution, the supremacy clause, which provides that " if any other law is inconsistent to the provision of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void" Members of the Police Force and those of the Armed Forces or Services, for example, are not permitted by law to join political parties, join partisan politics or contests for political offices while in service. Understandably. And it cannot be seriously suggested or argued that their right as Nigerians to freely assemble and to form or belong to any political party or trade union or any other association for the protection of their interest, is being breached.
We also submit that Section 137 (1)(g) of the Constitution which provides that "a person shall not be qualified for election to the office of the President if being a person employed in the civil or public service of the Federation or of any State he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election" cannot be interpreted or construed to permit a public officer, forbidden by the applicable statutory or constitutional provisions to hold office and contemporaneously join a political party and run for an elective office, to hold office and contemporaneously join a political party and run for an elective office. This Section relates only to the eligibility and qualification of public officers to run for political offices in a general election; not to any alleged right of the CBN Governor, a public officer, to be a member of a political party regardless of whether or not he seeks to contest for an elected office while holding his public office.
While Section 137 ( 1) (g) references at least thirty days before the date of an election for resignation, withdrawal or retirement from office, of a public officer who may want to contest in a ( general ) election, Section 11 (3) of the CBN Act provides that "the Governor or any Deputy Governor may resign his office by giving at least three months' notice in writing to the President of his intention to do so and any director may similarly resign by giving at least one month's notice in writing to the president of his intention to do so.". Placing the two provisions side by side, it becomes very clear that these provisions cannot be relied upon to permit a CBN Governor to engage in partisan politics until thirty days to an election or three months to an election. Whether he eventually contests in an election or not is beside the point. Once he becomes a member of a political party and starts participating in partisan politics, whether the time he is doing so is four years to an election or one year to an election in which he may participate, is of no consequence. He can no longer keep the office.
The law is that the provisions of the Constitution must be read and construed as a whole, and not in isolation of one another, to such a degree that a selective and isolated interpretation of a section will lead to the interpretative violation of another section or other sections, thereby occasioning absurdity. When the constitutional provisions of the Code of Conduct are read together with Section 137(1) ( g) of the Constitution, and the relevant provisions of the CBN Act, it becomes clear that no incumbent CBN Governor can lawfully dabble in partisan politics, become a registered member of a political party and contest for the office of President of Nigeria at any point during his term, whether the country is close to election or not. It is unlawful and unconstitutional.
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Similarly, as argued above, Section 222 (b) of the Constitution which provides that "no association of whatever name called shall function as a political party unless-the membership of the association is open to every citizen of Nigeria, irrespective of the place of origin, circumstance of birth, sex, religion or ethnic grouping" cannot be interpreted to accommodate public officers who are prohibited from participating in partisan politics. The literal or textual interpretation of the provision does not yield such accommodation.
Fourthly, it is our firm view that the CBN Governor has, by engaging in partisan politics, and actively seeking to contest for the office of President of Nigeria committed serious acts of misconduct under Rule 030402 which provides that serious act of misconduct includes, amongst other listed incidents, " (g) engaging in partisan political activities, (o) action prejudicial to the security of the State, (r) nepotism or any other form of preferential treatment, (s) divided loyalty and (w) any other act unbecoming of a public officer."
The CBN Governor has also violated Rule 030422 which provides that "no officer shall, without express permission of the government, whether on duty or leave of absence: (a) hold any office, paid or unpaid, permanent or temporary in any political organization (b) offer himself/herself or nominate anyone else as a candidate for any elective public office including membership of a local government council, state or national assembly (c ) indicate publicly his support of or opposition to any party or candidate or policy (d) engage in canvassing in support for political candidate; and (e) nothing in this rule shall be deemed to prevent an officer from voting at an election".
Urgent Action
Based on the unlawful acts of the CBN Governor, the Senate of the Federal Republic of Nigeria is urged to immediately commence the removal from office proceedings against the CBN Governor, for committing acts of serious misconduct. Be it noted that Section 11 (2) of the CBN Act provides that: "the Governor, Deputy Governor or Director shall cease to hold office in the bank if he-(c) is guilty of serious misconduct in relation to his duties under this Act. Rules 030401 and 030402 also define the offence of serious misconduct.
Rule 030423 provides that "resignation is necessary before seeking elective public office. Howbeit, any officer wishing to engage in partisan political activities or seek elective public office shall resign his/her appointment forthwith."
The provision of Rule 030423 is beautiful. But we are not calling on the CBN Governor to resign. He may not. Rule 030401 of the Public Service Rules defines "serious misconduct." It is defined as a specific act of very serious wrong-doing and improper behavior which is inimical to the image of the service and which can be investigated and if proven may lead to dismissal." What is required is a removal proceeding in the Senate, the end of which will be tantamount to a dismissal from office.
Section 8(1) of the CBN Act provides that "the Governor and the Deputy Governors shall be persons of recognized financial experience and shall be appointed by the President, subject to confirmation by the Senate on such terms and conditions as may be set out in their respective letters of appointments"
Section 11(2) ( c & f) of the CBN Act stipulates that: the Governor, Deputy Governor or director shall cease to hold office in the Bank if [c] he is guilty of a serious misconduct in relation to his duties under this Act [f] is removed by the President; PROVIDED that the removal of the Governor shall be supported by two-thirds majority of the Senate praying that he be so removed"
The CBN Governor came to office by the confirmation of the Senate; and he is removable by a two-thirds concurring vote of the Senate. Practically, the Senate is empowered, through a removal hearing, and by a two-thirds resolution to authorize the President to remove the CBN Governor from office. The President must comply with such a resolution.
The CBN, by its enabling law, is not a body that is accountable or responsible to no one. S.8(4) of the Act provides that "the Governor (of the CBN) shall appear before the National Assembly ( NA) at semi-annual hearings as specified in subsection 5 regarding-: (a) effort, activities, objectives and plans of the Board with monetary policy, and (b) economic development and prospects for the future described in the report required in subsection 5(b) of this Section."
S. 8(5) of the Act provides that "the Governor (of the CBN) shall from time to time (a) keep the President, informed of the affairs of the Bank, including a report on its budget and, (b) makes a formal report and presentation on the activities of the Bank and the performance of the economy to the relevant committees of the NA." And S. 50 (1-2) of the Act provides that "the Bank shall, within two months after the close of each financial year transmit to the NA and the President a copy of its annual accounts certified by the auditor; and a report required to be submitted to the NA and the President shall be copied by the Bank in such manner as the Governor may direct"
The CBN Act has ample provisions to make the CBN Governor accountable, and if he abuses his office or powers or is adjudged guilty of misconduct in a removal hearing conducted by the Senate, the due process of law must be followed in sanctioning him.
The CBN Governor must go.
Jiti Ogunye, public interest attorney, legal essayist, and author is Legal Adviser to Premium Times and Principal Counsel, Jiti Ogunye Chambers, Lagos Nigeria.
