Minister’s Contravention Of The Law In The Purported Removal Of The Managing Director Of Nbet
The Prominent Civil Rights Advocacy group- HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) has observed that the Hon. Minister of Power ordered Dr. Marilyn Amobi to “step down with immediate effect” as Managing Director of NBET, “as a result of the myriad of complaints against her.” This was widely reported by news media on 24 December 2019.
We (HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA)are unable to discern the motive of the Hon. Minister. However one thing that is crystal clear when viewed against the statutory regime for the regulation of the Nigerian Electricity Supply Industry (NESI) is that the actions are wrong and unsupportable under the laws of the Land.
NBET’s Articles of Association show that 4,000,000 of NBET’s shares are held by the Ministry of Finance Incorporated (“MOFI”) while 16,000,000 of the shares are held by the Bureau of Public Enterprises (“BPE”). Consequently, while MOFI holds 20% of the shares, BPE holds 80% of the shares. NBET’s shareholding structure is in line with section 9 of the Electricity Sector Regulatory Act, 2005,which provides that the shares of successor companies after incorporation shall be held jointly in the name of the MOFI and BPE for and on behalf of the FGN.
NBET’s Amended Memorandum and Articles of Association show that NBET’s Board presently has seven (7) members including a chairman and a vice chairman. The Chairman of the Board of NBET is the Minister for Finance.
It is pertinent to distinguish NBET from public corporations which are typically established by law or Acts of the National Assembly as government vehicles to enable government to be involved in certain industries. Notable examples of such public corporations in Nigeria are Nigerian National Petroleum Corporation (NNPC), Nigerian Deposit Insurance Corporation (NDIC), Nigerian Tourism Development Corporation, Nigerian Railway Corporation (NRC), Nigerian Film Corporation and Nigerian Mining Corporation. A significant feature of these public corporations is that the laws establishing them specifically grant relevant ministers supervisory and regulatory powers over these public corporations.
There is no law empowering any minister to give directives of any nature to NBET. Further, NBET’s Management is not statutorily subject to any duty of complying with any ministerial directive or order. Notwithstanding that the Minister is one of its seven Board members of NBET, neither the Act nor NBET’s articles of association empowers the Minister to unilaterally supervise NBET.
Being a duly registered public limited liability company under CAMA, NBET is subject to the above provisions of CAMA. The powers of NBET’s Board and the individual members of the Board are as provided for in NBET’s articles of association subject to the provisions of CAMA.
NBET’s Board is comprised of seven members inclusive of a chairman and a vice chairman. The Minister of Power is one of the Board members. In the absence of any authorization from the Board, it is an improper and unlawful exercise of the powers of NBET’s Board for the Minister to unilaterally order the removal of NBET’s Managing Director.
The Managing Director is answerable to NBET’s Board and not to individual members of the Board.
Accordingly, where a member of the Board has any concerns as to the management of NBET or the performance of its objectives, the proper and lawful course of action is for the Board member to channel his concerns through the Board He is not under the law establishing NBET allowed to unilaterally take decisions on NBET. He is not a supervising Minister of NBET
Nigerian Electricity Regulatory Commission (NERC) is NBET’s “duly constituted regulatory authority”. This is supported by sections 32(1) and (2) and 68 of the Electricity Sector Regulatory Act. Specifically, section 32(2)(d) saddles NERC with the responsibility of licensing and regulating persons engaged in the generation, transmission, system operation, distribution and trading of electricity. In relation to the first query, the Act does not empower the Minister to supervise or regulate the affairs of NBET. Assuming, for the sake of argument, that the framers of the Act had intended NBET to be subject to the supervisory and regulatory purview of the Minister they would have unequivocally stated so in the Act.
If the Act establishing NBET intended to bring NBET within the Minister’s supervisory compass, the lawmakers would have expressly and unambiguously done so. It is a fairly settled rule of statutory interpretation that clear and unambiguous words in a statute should be given their ordinary meaning when construing. Extending the Minister’s supervisory compass to NBET is a direct violation of the laws of the land.
In the light of the foregoing and from a regulatory perspective, the procedure adopted by the Minister for the removal of NBET’s Managing Director is not sound in the considered opimion of our members.
In addition to this, the Minister’s statement that he was responding to myriads of complaints is totally wrong. The Minister is not expected to respond to complaints that have not been investigated. It is totally unenlightened to respond to complaints that may turn out to be unfounded. In the case of NBET, it is tragic because there is a regulatory body NERC that is saddled with the responsibility of a regulator in the power sector. The lawful thing to do is to refer the issue to NERC for its investigation and recommendation and not to come to a conclusion without investigation
The action of the Minister has further devalued Nigeria in the eyes of investor s and all those seeking to participate in the power industry. No discerning investor will ever seek to participate in an industry bedeviled with such arbitrary and unlawful actions. The Hon. Minister for Power is advised to reverse this condemnable action of his to save Nigeria from further embarrassment.
Comrade Emmanuel Onwubiko
National Coordinator Comrade; HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA).
MISS ZAINAB YUSUF
National Media Affairs Director.