Funmilayo Odude, Partner, Commercial and Energy Law Practice (CANDELP)

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Can the President remove just any head of government agency? 13 Feb 2024

Last month, President Bola Tinubu removed the Executive Vice Chairman/CEO of the Federal Competition and Consumer Protection Commission (FCCPC), Babatunde Irukera, and the Director-General of the Bureau of Public Enterprises (BPE), Alex Okoh, from their positions. Many headlines reported the removals as a “sack” or “dismissal”, which necessitated a clarification from the government.

An aide to the President said the former appointees were relieved of their duties, not dismissed. He said: “The president’s directive did not intend a dismissal. The two men, who have served our country, were relieved of their duties by the president, as he scouts for their successors. … The connotations implied in using the word dismissal were clearly not intended in the statement issued. President Tinubu thanks the two men for their services and wishes them well in their future endeavours.”

Whatever the intentions, the men were removed from their positions with immediate effect before the end of their statutory terms of office.

Irukera and Okoh were not the first set of heads of government agencies to be removed since President Tinubu assumed office on 29 May 2023. There have been over a dozen removals of the heads of statutory agencies since the last inauguration day. Those affected included the Registrar-General of the Corporate Affairs Commission (CAC), Director-General of the Industrial Training Fund (ITF), and the Executive Secretary/CEO, Nigeria Investment Promotion Commission (NIPC). It has come to be expected that a new president would not only assemble his cabinet but also substantially change the governing boards and heads of statutory agencies.

The powers of a president to constitute his/her cabinet is constitutional and unassailable. However, statutory offices are of a different nature. A cabinet is dissolved at the end of every administration. Most, although not all, heads of statutory agencies have their terms of office mostly prescribed by statutes and such terms need not end when a new president assumes office. Many of the laws creating agencies prescribe the tenures of the heads of the agencies. The laws,  more importantly, provides for the powers of appointment of the agencies’ heads.

However, only a few of such laws make provisions regarding the removal of the heads of the agencies. The implication of this appears to be that, even though the enabling acts may prescribe their terms of office, the heads of the agencies serve at the pleasure of the president. They can be removed and replaced at any time.

Examples of statutory appointments which do not make express provisions for removal include the Director General/Chief Executive of the National Agency for Food and Drug Administration and Control (NAFDAC), the Executive Chairman of the Federal Inland Revenue Service (FIRS), Chairman/Chief Executive of the Nigerian Communications Commission (NCC), and Chairman/Chief Executive of the Economic and Financial Crimes Commission (EFCC). While the DG of NAFDAC and Chairman of EFCC should have certainty of tenure as their enabling acts provide for, one key feature of all of the examples given is that there are no protective provisions governing the removal of the appointees. As appointments into these roles are by the president (sometimes on the recommendations of Boards and Councils or subject to confirmation by the Senate), the president also has the powers to fire.

Some acts establishing statutory bodies or agencies prescribe not just the term or tenure for their heads but also the conditions for removal. The most notable of this is the Central Bank of Nigeria (CBN), whose enabling act prescribes that the Governor and Deputy Governors of the bank would serve in the first instance for a fixed term of five years, and they shall be eligible for re-appointment for another term not exceeding five years, according to section 8 of the CBN Act.

The CBN Governor and Deputy Governors can only be removed by the President where such removal is supported by two-thirds majority of the Senate (Section 11 (2) (f) of the CBN Act). Despite these provisions, there have been two instances when the President has circumvented the requirement for legislative approval for the removal of the Governor of the CBN, by “suspending” the occupant from the role. The lacuna created under the law with respect to the power to suspend the CBN Governor has not been subjected to judicial interpretation.

Judicial precedents in Nigeria recognise some appointments as ones with statutory flavour. Not all government appointees or heads of statutory bodies, however, have employments with statutory flavour. An employment is said to have statutory flavour where the enabling law provides for the manner of employment and termination. Such employment is protected by statute. Therefore, the mere fact that an employer is a statutory corporation, or that the government has shares in it, does not elevate an appointment or employment into that corporation as one of statutory flavour.

This position has been upheld by our superior courts. In the case of Ovivie v. Delta Steel Co Ltd [2023] 14 NWLR (Part 1904) 203, for example, several persons employed by Delta Steel Co Ltd on different dates and who worked in various capacities for over 10 years under the “Approved Conditions of Service for Federal Government Owned Steel Companies 1989” challenged the termination of their employments under the company’s redundancy policy or rationalisation of staff in 1995. Their grievance was that other employees who were employed after them were not affected by the redundancy contrary to the principle of “last in, first out.” The Supreme Court, however, in a judgment delivered on 31 March 2023 held that their employments did not have statutory flavour. The court refused their arguments that their contracts were of statutory flavour because their employer was a wholly owned company of the Federal Government.

Also, the mere fact that an employer is a statutory body does not automatically elevate all its employees to the status of having employments with statutory flavour. Following the rationalisation exercise conducted by the CBN between 1996 and 2003, which led to the termination of the employments of several employees of the bank, 11 of such employees filed a representative action for themselves and on behalf of over 1,000 of the former staff, in 2003, suing the bank at the Federal High Court. The Supreme Court determining an appeal that flowed from the judgment in the suit held in a judgment delivered on 2 December 2022 in the case of Adedeji v. C.B.N. [2023] 5 NWLR (Part 1878) 531 stated that there has to be a linkage or nexus between the employee's direct appointment or employment with the statute creating the employer or corporation. In order words, the role or office must be established by statute.

The conditions that must be present to cloak an employment with statutory flavour is that both the appointment and termination of the contract of employment are governed by pre-conditions set out in the enabling statute such that a valid determination is predicated on satisfying such statutory provisions. Both the engagement and disengagement must be regulated by statute. The contracts are, thus, not determinable on the whims and caprices of any person or authority but by the statutory pre-conditions governing its determination. Such contracts can only be terminated in the manner as prescribed by the very statute that created them. Where the laid-down procedure is not followed, the employee or appointee is entitled to be reinstated.

There are very few laws establishing statutory bodies in Nigeria that provide for the procedure for termination. The practice has been to whittle down the statutory provisions on term and tenure. Even with statutory certainty of term, such appointees serve at the pleasure of the President. In one sense, this is rational, and it is an internationally accepted convention that, in a democracy, an appointed official in the executive arm of government serves at the pleasure of the president. These agencies form part of the driving force behind any government, and it is important for their occupants to share the vision and mandate of the sitting President for the purposes of cohesion and policy implementation.

On the other hand, however, the effect of appointments with statutory flavour is that it ensures the protection of public institutions from political interference. This shouldn’t be reserved only for independent bodies such as the CBN or the Independent National Electoral Commission (INEC) although we have had the heads of both bodies unceremoniously removed from office under our democracy. This indicates lack of respect for due process of the law and the exploitation of legal lacunae to circumvent the spirit and intent of laws.

Where is the balance? For independent bodies which are expected to exercise some degree of autonomy and independence from presidential control, we must maintain the provisions that permits removal only for reasons stated in the laws and according to stipulated procedures. The legislators need to fill the lacuna with respect to suspending the occupant of such offices in order to prevent abuse of its use. The spirit and intent of the laws are circumvented by suspending the previous occupants of the office and appointing an “acting” replacement.

For the other executive agencies, which are considered parts of the executive arm like the ministries, we may look at including some measure of checks and balances such that, if we maintain that the appointing authority may fire, we should also ensure that where such appointment requires the confirmation of the Senate, the removal should similarly require Senate confirmation.

Funmilayo Odude is Partner at Commercial and Energy Law Practice (CANDELP).