By Ikechukwu Okaforadi
The suspension of the Managing Director of the Nigeria Bulk Electricity Trading (Plc), Dr. Marilyn Amobi by the Minister of Power, Sale Mamman has been criticised as having no place in law.
The Human Rights Writers Association of Nigeria(HURIWA) yesterday said the Minister of Power does not have power under the laws to carry out the suspension.
HURIWA accused the Minister for acting outside the Act of NBTE in axing Amobi.
It said there is no law empowering any minister to give directives of any nature to NBET.
It also said the Minister is one of the seven Board members of NBET and neither the Act nor NBET’s articles of association empowers the minister to unilaterally supervise NBET.
It said in the absence of any authorization from the Board, it is an improper and unlawful exercise of the powers of NBET’s Board for any member to suspend the Managing Director.
The association faulted the Minister in a statement in Abuja which was signed by its National Coordinator, Comrade Emmanuel Onwubiko and National Media Affairs Director, Miss Zainab Yusuf.
The statement said: “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 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.
HURIWA said the Minister of Power is not the chairman of NBET board and queried why he took the laws into his hands.
The statement added: “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.”
HURIWA said it was unfortunate that the Minister of Power, who is a board member of NBET sidelined the chairman of the agency(the Minister of Finance) to suspend Amobi.
The statement said: “NBET’s Board is comprised 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 opinion of our members.”