April 22, 2018/Mounir Gwarzo
Recent decisions by the Federal House of Representatives (The House) with respect to their public hearing and investigations on the cases against the Executive Secretary of the National Health Insurance Scheme (NHIS), some Directors of the National Emergency Management Agency (NEMA) and that against me with respect to my suspension as the Director General of the Securities and Exchange Commission (SEC) are puzzling.
The House had at its sitting on the 18th of April 2018 while adopting the report of its Committee on Capital Market and Institutions headed by Rep Tajudeen Ayo Yusuf said that I indeed has a case to answer and that the Minister of Finance Kemi Adeosun was right to have suspended me it therefore stated that “the suspension of the Director General of SEC, Mounir Gwarzo stands”.
I was suspended by the Minister of Finance Mrs. Kemi Adeosun on 29thNovember 2017. She based the suspension on petitions of corrupt practices and breaches of the public service rules levelled against me. However, at a public hearing before the House Committee on Capital Market and Institutions on January 30th, 2018, I noted that not only was due process not followed by the Minister prior to the suspension, she also lacked the authority to suspend me as this power lies solely on the President of the Federal Republic of Nigeria based on her recommendation and upon the confirmation from the senate as clearly captured in S5 (1) ISA 2007 which states that “the Director-General and the three full time Commissioners shall be appointed by the President upon the recommendation of the Minister and confirmation by the Senate.”
As S11 (1) of the Interpretation Act clearly states as follows, “Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes –
(a) power to appoint a person by name or to appoint the holder from time to time of a particular office;
(b) power to remove or suspend him.
The Minister in her letter based my suspension pursuant to the provisions of the Nigerian Public Service Rules (PSR) namely PSR 03405 and PSR 03406 however as I informed the public hearing, these provisions do not exist in Nigeria’s Public Service Rules and as we all know you can’t build something on nothing. What exist are PSR 030405 and PSR 030406.PSR 030405 merely provides for the responsibility of an interdicted officer or officer under suspension to make notification of his intention to leave his station or the country. While PSR 030406 requires a prima facie case to be established against an officer before he could be suspended. In my case,a prima facie case is yet to be established against me although I was invited by the Independent Corrupt Practices Commission (ICPC) after my suspension.Also, the Minister only set up an Administrative Panel after my suspension inviting me to appear on 8 January 2018 over the same subject matter.
Furthermore, according to PSR 160103, the PSR would only apply to the SEC DG or any staff of SEC in the absence of any statute, manual, rules, procedures and practices regulating the Securities and Exchange Commission and its staff. It is important at this point to state that my letter of appointment as the DG specifically referred to the ISA 2007 – an Act of the National Assembly as the law governing my conditions of service. Thus all actions relating to my appointment must be in compliance with the ISA as anything outside same would amount to a nullity.
However, the same House on the recommendation of its Committee on Emergency and Disaster Preparedness would at a sitting on the 20th of April 2018 direct the recall of the suspended Directors of NEMA because according to the Deputy Chairman of the Committee Hon. Ali Isa, investigations had shown that due process was not followed in their suspension and this is even after the Acting Chairman of the Economic and Financial Crimes Commission (EFCC) informed The House that NEMA had based the suspension of the Directors following a recommendation by EFCC who had carried out investigations against the Directors following a petition they received in December 2017and had found them wanting.
A member of the Committee Hon. Gabriel Onyewife also noted that in the case of NEMA there was no evidence of fair hearing and no final judgement had been passed against them as investigation was still in progress, this position was supported by the Speaker of the House, Hon. Yakubu Dogara who said that it was wrong to suspend someone without an opportunity for fair hearing.
In the case of the Executive Secretary NHIS who was suspended by the Minister of Health (but was reinstated 6 months later by the President of the Federal Republic of Nigeria) while investigations against him were still ongoing, and before the release of the report of the Public Hearing by the House of Representatives Committee on Health Services, the Chairman of the Committee Hon. Chike Okafor immediately moved a motion for his protection and immediate recall.
From the above it is obvious that the position of the House that my suspension as the DG, SEC was in order on the mere ground that I had a case to answer when it is clearly obvious that due process was not followed in my caseleaves a lot to be desired.
Recently, the Federal Government through the Office of the Secretary to the Government of the Federation, in the case of the purported suspension of the Director-General, National Women Development Centre, carried out by the centre’s Governing Board which the Federal Government termed as an illegal act and directed the DG to resume her duties immediately.
Part of the statement read as follows, “The Boards and Chief Executive Officers are all appointed by Mr. President, according to stated terms and conditions with clearly established rules and procedures for subjecting Chief Executive Officers to disciplinary measures including suspension from office. In this respect, this process has not been followed.
Government believes in due process, and will not tolerate any arbitrary action taken by any Board of any Federal Government Agency.”
Finally if there is any arm of Government that should be unhappy about the way and manner I was suspended it should be the Legislature as the Minister of Finance acted against the provisions of ISA 2007 which is an Act of the National Assembly.