A Memo to AGF on CBN Act and Descent into Lawlessness

Dear HM & AGF,

I am constrained to write you through this channel for two reasons. First, I do not have direct or personal contact with you. Secondly, the issues I am about to raise are, in my view, of significant public interest that private communication would not aid the necessary national conversation that I wish this letter would elicit. Pending the decision of the Supreme Court on the 2023 election, I plan to draw your attention to issues about the disturbing and worrying pattern of disregard and violation of the laws of the land since the inception of this administration.

The office of the Attorney-General is a creation of the Constitution and a very prominent member of the Federal Executive Council. The Constitution in S.150 (1) created the office of the Attorney-General “…who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation.” The Constitution, in typical Nigerian culture of opaqueness, in S. 174 (1) focused the function of the Attorney-General on the power to institute criminal proceedings, to take over any criminal proceedings instituted by any authority, and to discontinue any criminal matter before judgement. The role of the AG as the adviser, legal representative, and chief law enforcement officer of the government clothed with independence appeared not to have been of interest to the framers of our Constitution, or maybe they presumed that the National Assembly would make a law that captures these details.

A cursory review of the office of the Attorney General in Kenya, the United States of America, Brazil, and India all show a focus on independence, the role of the AG, the legal adviser to the government, the chief prosecutor, and the law enforcement officer. The Attorney-General’s functions, in many countries, are detailed in Acts of Parliament, not just the Constitution.

There is a need for the National Assembly to enact a law codifying the role and functions of the Attorney-General and clothing the office with the necessary independence that would statutorily arm the office in the effort to curb executive lawlessness. I will pursue this line of thought further.

Honourable Minister, I do not know if the President routinely seeks your opinion in exercising his powers as the country’s chief executive. The growing lawlessness and Gestapo tactics the government is deploying to achieve its objectives would deepen the damage the immediate past administration did to the country. The arrest, detention, and purported resignation of the Central Bank Governor, Godwin Emefiele, and the EFCC Chairman, Abdulrasheed Bawa, exhibit all the trappings of the style of the Communist Party.

Today’s crux of my letter is the gross violation of the CBN Act in appointing the new Central Bank Governor and the Deputies. First, the CBN Act provides in S. 8 (2) That the Governor and Deputy Governors shall be appointed in the first instance for a term of five years and shall each be eligible for reappointment for another term not exceeding five years. It added an important proviso, “Provided that, of the first four Deputy Governors to be so appointed, one shall in the first instance be appointed for three years and two shall in the first instance be appointed for four years.” The CBN Act prioritised experience and the need for continuity. The Senate (if they did) granting all four Deputy Governors a five-year term went beyond their powers. But the more critical issue is why the President appointed four Deputy Governors in one go. Did the previous Deputy Governors resign, too, like the Governor?

If the four Deputy Governors resigned, and there is no evidence to that effect, did they serve the mandatory three months’ notice? If they did not resign, how were they removed from office? S. 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 to the President of his intention to do so.” Honourable Minister, you need to take a second look at this egregious Act of removing from office persons who ought to enjoy independence and require Senate approval before removal from office. It is a bad precedent and an indication of the high level of disregard for rules that are becoming the hallmark of this administration.

S. 11 (4) further provides that “If the Governor, any Deputy Governor or Director of the Bank dies, resigns or otherwise vacates his office before the expiry of the term for which he has been appointed, there shall be appointed a fit and proper person to take his place on the Board for the unexpired period of the term of appointment in the first instance if the vacancy is that of (a) The Governor or a Deputy Governor, the appointments gallery be made in the manner prescribed by section 8 (1) and (2) of this Act; and
The nomination by the President and the Senate clearance of the CBN Governor and Deputy Governors for five years’ tenure violates the CBN Act. The new Governor and Deputies can only complete the unexpired terms of their predecessors. This provision must have been made to protect the continuity and experience the Act provided for in S.8 (2). By this single Act of lawlessness or lack of attention to detail, this government has damaged the CBN’s structure, character, and independence.

As a senior legal practitioner and learned silk, my dear AG, I believe you will not lend your imprimatur to this creeping lawlessness. My suggestions: You can seek out the past Deputy Governors and get them to resign quietly before they seek to enforce their rights. Also, ask the Senate to amend their clearance to reflect the provisions of S. 11 (4) so that the new CBN management would conclude the tenure of their predecessors. That way, the government would also comply with the need for the Deputy Governors to exit the bank in a staggered manner to maintain continuity and experience.

Thank you for your kind consideration.
Osita Chidoka
16 October 2023