Followers of the ongoing currency re-design saga at the Supreme Court would have observed that at the hearing of the suit on March 3, the governors canvassed the argument that ruling be made first on their motion asking the court to commit the Attorney General of the Federation to prison before hearing the later’s motion asking the court to dismiss the case entirely.
However, the learned Judges of the Supreme Court in their wisdom ruled, and rightly so that all the motions will be heard together at the next adjourned date which was March 10 2023.
Subsequent events seem to suggest that the Supreme Court wittingly or unwittingly allowed itself to be made a scapegoat by its judgement on March 10. Firstly, the apex court gave judgement to the effect that the N200,N500 and N1000 old notes remain legal tender until 31 December 2023. Secondly, that the Naira redesign policy did not follow due process and therefore has been cancelled. This decision was arrived at because, in a bid to interpret the provisions of the CBN act, certain institutions were not consulted before implantation of the policy and therefore that’s an affront to the constitution.
On the contrary in my own considered view, the action of the Supreme Court in jettisoning the policy is an affront on the Executive arm of government and by extension, the Federal Republic of Nigeria.
Why do I say this? The currency Naira is a symbol of Nigerian sovereignty. Therefore, any action or policy by the Central Bank of Nigeria which is mandated to issue and manage it must receive approval from the President and Commander in Chief of the Armed Forces President Muhammadu Buhari before being implemented .That is why Professor Chukwuma Soludo’s Naira redenomination policy was not implemented because late President Umaru Yar’adua did not approve the policy.
In the instant case, the sitting Governor Godwin Emefiele sought, and got the approval of President Muhammadu Buhari before implementing the currency redesign policy. It should be noted that the President does not have to be an Economist or versed in matters of monetary management. It is a constitutional requirement that must be fulfilled.
In my earlier write up in the BusinessDay newspaper of 8 March, titled Supreme Court: In Defence of CBN, I mentioned in passing with all due respect that the Supreme Court Judges over reached themselves in arriving at the judgement extending the validity of the N200, N500 and N1000 notes to 31 December 2023 because issues on currency as legal tender is an executive function not a judiciary function.
This time around, the Supreme Court engaged in what I will call “creative lawyering” while seeking to interpret the CBN act which is within its jurisdiction ended up passing judgement that the whole Naira redesign policy be cancelled when the policy on Naira is an executive not a judiciary function.
With that judgement, the Supreme Court has not only put itself in an embarrassing position when Nigerian citizens are not obeying its judgement but rather calling on the President to speak on the matter before they can begin to transact business with those currencies.
The matter is even worse because the Supreme Court wittingly or unwittingly engaged in audit of the Executive. This claim is validated by the pronouncement that due process was not followed in conception and implementation of the policy. That is intriguing especially as the policy received executive approval as required by the constitution and ought to have been taken as a “fait accompli”, a fairly accomplished task. Cancellation of the policy could be interpreted to mean that the Judiciary is undermining the Executive arm of government whereas both organs are independent of each other.
Another issue to be addressed is the claim by Governors that the three (3) months notice given by the CBN for the withdrawal of the currency is too short, which is why the extension to 31 December 2023 can be justified.
It is note worthy that this is not the first time the CBN is engaging in changing from old currency to a new one. The currency exercise of 1968 led to litigation that ended up at the Supreme Court. In Bank of the North Ltd v Central Bank of Nigeria (1972) 1 ALL NLR 52 which settles this matter of short notice. “By a confidential directive to the Plaintiff dated 23 rd December, 1967, the Defendant ( that is the Central Bank of Nigeria) notified the Plaintiff that all currency notes issued by the Defendant for the years 1959 and 1965 received by the Plaintiff before the 22 nd day of January 1968 and paid to the Defendant before the 30th Day of January 1968 would be treated as legal tender for the purposes of exchange of new notes.
Paragraph 7 of the Defendant’s said letter reads:
“The legal status of the 1959 and 1965 issued notes will be withdrawn with effect from the close of banking business on 22 nd January 1968 and deposit or exchange of old notes will cease. However, the Central Bank continued to accept deposits and undertake exchanges of the old notes for the banks up to the close of business on 29 th January 1968. No deposits/exchanges will be accepted from or undertaken for banks by the Central Bank or its agents after close of business on the 29 th January 1968”.
Read also: Old naira: I didn’t order CBN, AGF to disobey Supreme Court – Buhari
From the foregoing, we can see that only one (1) month and one week (7 days) notice was given in 1967 for the withdrawal of the currency but in 2022, the CBN gave three (3) months notice to the general public before the withdrawal. The Supreme Court did not rule at that time, an analogue era, that the one month and one week was too short. Why is the three months notice by CBN for withdrawal of the currency in 2022 too short with the advantage of technology and preponderance of banks, conventional banks, microfinance banks, mortgage banks and even POS operators everywhere in the remotest parts of the country to receive deposits?
The major problem in Nigeria is the culture of impunity by the citizens and the political class and elites that do not respect the actions of statutory institutions of which the Central Bank is a case in point. They weaken these institutions by wielding political power and dare I say intimidation of people put in position to administer these institutions. For instance, the Central Bank Governor Godwin Emefiele was intimidated with trumped up charges of engagement in terrorism financing until he was let off the hook.
If we want to build a strong and united nation, we must build strong institutions. An institution that exercises the power vested on it by the Act or legal instrument establishing it does not, in my considered view, need to approach the court for empowerment to carry out its statutory duty. That is what it should be in a well organised society.
The governors rather than comply with the policy of CBN on currency redesignation as law abiding citizens approached the Supreme Court to challenge the policy and to get the policy reversed and indeed, the Supreme Court listened to them and got the policy reversed. If this is not a way to weaken established institutions, I wonder what is.
Unless Nigerian citizens , especially the elites and political class become patriotic enough to accept the decisions of established institutions as a “fait accompli”, a fairly accomplished task, without changing it in law courts, all our efforts to build a united and strong Nigeria will not yield a positive result. May the Almighty God heal our land of recalcitrant few and bless Nigeria with law abiding citizens.
Enyinnaya is a fellow, Chartered Institute of Bankers