Postscript by Waziri Adio
There are sound financial and moral arguments against wilful mutilation of the Naira, Nigeria’s national currency. These arguments provided the basis for the grudgingly passed provisions captured under Section 21 of the Central Bank of Nigeria (CBN) Act, 2007. However, these financial and moral arguments, in my view, are not strong enough to invite criminal conviction, especially incarceration, on some practices that could be framed as Naira mutilation in the eyes of the law. Recent developments have exposed the danger of broad definition, expansive discretion and lack of proportionality in making and enforcing laws. To prevent overzealousness and needless but credible charges of selective application, that section of the CBN Act needs urgent amendment.
Ahead of the presentation and the passage of that segment of the bill, the CBN had launched a vigorous campaign against what it termed the abuse or the mutilation of the Naira. The then CBN governor, Professor Charles Soludo, offered two major points: one, it costs a lot to replace abused/mutilated naira notes; and two, the national currency deserves the same respect as other national symbols. These are not trivial arguments. It would be hard to argue against legally frowning upon and criminalising deliberately defacing, tearing and counterfeiting Naira notes. Scarce state resources need to be optimally managed and symbols of national identity, including the national currency, deserve utmost respect.
But the bill, and the eventual law, veered into contentious and problematic grounds when it included squeezing and spraying of Naira notes as criminal abuses which, upon conviction, would be punishable by a jail term of not less than six months or a fine of not less than N50,000 or both. The subhead of Section 21 of the CBN Act is actually about ‘tampering and trading in notes and coins’, but the law adopts an expansive and potentially tricky definition of what constitutes tampering. In Section 21(3), the CBN Act states: “for the avoidance of doubt, spraying of, dancing or marching on the Naira or any other notes issued by the Bank during social occasions or otherwise howsoever shall constitute an abuse and defacing of the Naira and shall be punishable under subsection (1) of this section.”
And in Section 21(5) (i) (ii), the law goes on to stretch the meaning of marching and spraying to include not only egregious acts such ‘littering’ and ‘stepping on’ the currency but also borderline acts such as ‘spreading’, ‘adorning,’ ‘spraying anything or any person or any part of any person with Naira notes or coins in a similar manner regardless of the amount, occasion or the intent.’ We will address other issues later, but this expansive definition is not only open to controversial interpretations but could also circumscribe harmless and dignified cultural and religious practices and limit the livelihoods of some citizens. We will return to this too.
It is important to remember that some senators objected to this clause during the debate on the general principles of the bill on 13 June 2006. According to a Daily Trust story, prominent senators who opposed that section included Senator Sanusi Daggash, Senator Daniel Saror, Senator Idris Kuta and Senate Ibrahim Mantu. The reasons they cited for their opposition included impracticality of the law and cultural insensitivity and affront. Senator Jonathan Zwingina, then the Deputy Senate Leader, had to move for the bill to be stepped down for further consultations. As reported by Daily Trust on 14th June 2006, “Zwingina later told journalists that ‘it is a very unpopular bill which many senators find to be inimical to our culture’, adding that if the ban was approved, market women, politicians and voters would go to jail for abuse of the Naira notes.”
After some consultation and slight modification, the clause was passed by the National Assembly as part of what became the CBN Act. It was one of the last bills assented to by then departing President Olusegun Obasanjo who had while launching the polymer notes three months earlier taken issues with how some Nigerians step on and spray Naira notes at social functions. The CBN Act was gazetted on 1st June 2007.
The CBN subsequently and rightly invested in sensitisation campaigns on proper ways to handle the Naira during celebrations and in some peculiar circumstances. The CBN stopped doing this long ago. It shouldn’t have. During a sensitisation visit to the late Ooni Okunade Sijuade in 2007, Soludo was reported by ThisDay to have told journalists that: ‘the most important part of the bill (law) was not to punish offenders, but to sensitise and appeal to them to voluntarily stop the habit of spraying or squeezing the notes.’ This remains the sensible path to follow on this issue. Many Nigerians are still not aware of the provisions of this law. While ignorance is not an excuse under the law, it is neither practical nor a good use of scarce public resources to start going after those who spray Naira notes in the different ways defined by the law.
It is important to quickly dispense with some issues. I am unlikely to indulge in spraying money at parties or events. I frown upon obscene displays of wealth in any form. I feel repulsed by the vulgar but now common practice of throwing money at people at parties, stamping on money or tossing money into the crowd at rallies and other events. Also, I sometimes share the widespread suspicion that the people who spend money tastelessly probably got their wealth through some shady or illegal avenues.
But some people derive indescribable joy in spraying money and being sprayed money, and not all of them do it in distasteful manners. Also, it is not everyone who sprays money out of celebration or benevolence that made their money illegally, and it is not the business of the state or the rest us of to prescribe to people how they should spend their money. The fact that I won’t do or that I don’t like something doesn’t mean those who like them or engage in them should be hauled into jail. Stamping on Naira notes should be where we draw the line, but we should not, as a society, elevate personal or moral preferences and unproven suspicion to the status of a high crime.
As long as we have the expansive definition of ‘spraying’ and ‘spreading’ of Naira in our law, someone who hands over Naira notes in pieces or in straps or in bundles to artistes or celebrants or other partygoers or into a carton can be deemed to have abused the Naira and is liable to be convicted of a crime, even if spared the option of jail. This will not only be against the intent of the law (which is about preventing contact with sweat and to stop defacing/dirtying of notes through stamping and contact with the floor), it will also take spontaneity and gaiety out of owambe parties and circumscribe the joy of celebrants and the livelihoods of some artistes.
Fuji and juju artistes and other traditional singers and drummers run a business model that revolves mostly around money sprayed to them at events by celebrants and guests. Weddings, naming and even burial ceremonies in most parts of the country are not complete without some forms of what the CBN Act has criminalised as abuse of the Naira. There are other traditional events like Dambe and Kokuwa wrestling competitions in the north where winners are showered with cash by excited spectators. Congregants in churches and mosques squeeze money into offering bags and donation boxes. As the legislators stated when they objected to the overtly expansive definition of Naira abuse in 2006, spraying money is an age-long practice bound up in tradition, culture and even religious practice, and cannot be erased simply by threatening to throw or actually throwing people into jail. As long we leave that flexibility in the law, it can be used for all sorts of ends, including political witch-hunt.
A popular line of argument since Justice Abimbola Awogboro handed out a six-month jail term to Idris Okuneye, popularly known as Bobrisky, for abusing the Naira is that the cross-dressing artist ran afoul of an existing law. The law is the law, those enamoured with this argument have been saying. True, we have a law against Naira mutilation. But laws can be bad or misguided, and there are too many examples bad laws in history to delay us here. The dangerous aspects of some laws may not be evident until the laws are enforced or until when law enforcement and judicial officers push a particular interpretation.
To start with, even the most egregious aspect of Naira mutilation shouldn’t be more than an infraction or a simple offence deserving no more than a fine and possibly community service, except for repeated offenders. There should be proportionality between offence and punishment. Sending those who mutilate the Naira to jail or including a jail sentence as an option is clearly disproportionate. One of the solid arguments that Soludo made in the lead-up to the inclusion of Clause 21 in the CBN Act is that the Naira deserves the respect and status of other national symbols like the national flag. Neither the National Ordinance Act nor the proposed amendments (like the Bill for the Flag and Coat of Arms Act, 2004) prescribes imprisonment for violation or disrespect of these national symbols that CBN thinks the Naira should be upgraded to. If you are not sending people to jail for disrespecting your flag, why do you think jail term is necessary for disrespecting your currency?
True, Judge Awogboro didn’t go outside a duly passed law to sentence Bobrisky to jail. Section 21 (1) grants the judge the latitude to choose between a sentence of not less than six months in jail or a fine of not less than N50, 000 or both. The law gave the judge the agency of discretion. But discretion can be exercised wrongly. This is what I think the judge did in this case. Bobrisky was a first-time offender, pleaded guilty and even offered to campaign against Naira abuse. All these should be grounds for leniency, even within the bounds of the flawed law.
But in exercising her discretion, the judge went for what many, including myself, consider an overreach, inviting unfair and dangerous insinuations that Bobrisky might have been sent to gaol for an offence not on the charge sheet. The fact that another judge had given Oluwadarasimi Omoseyin, an actress convicted of the same offence, the option of fine strengthens such unfortunate suspicion. The problem, however, is the law that criminalised spraying money and grants such discretions. Bobrisky’s lawyers should file an appeal.
The Economic and Financial Crimes Commission (EFCC), the law enforcement agency that got Bobrisky convicted, has vowed to continue to prosecute anyone caught abusing the Naira. It is doubtful if this is one of the high and difficult-to-unravel crimes for which EFCC was created as a specialised anti-corruption agency. It is doubtful if most Nigerians will rank spraying Naira as a serious economic and financial crime that should be a priority for their leading anti-corruption agency.
Yes, an agency can define its priority and maybe EFCC can find an omnibus provision within its law to give it the locus to investigate and prosecute those spraying Naira notes. But everything has an opportunity cost. The time and resources that EFCC will invest on what is at best a low-level crime are the time and resources that would not be available to the agency to put into very serious crimes that occasioned its creation and should be its priority. There should be more important things for the agency to do than chasing money sprayers and bragging about putting them behind bars.
Then, there is the issue of selectivity. No agency can practically track or prosecute everyone, including for some technical reasons. A sitting governor is on video throwing money into a crowd very recently. About four years ago, a private citizen, now the sitting president, handed out bundles of Naira notes to a famous Fuji artiste singing his praises at the 80th birthday of a Lagos business mogul in a manner that could be described as Naira spraying under the expansive definition of Section 21 (5) (ii) of the CBN Act. Of course, the governor has immunity from prosecution (though not from investigation). And the president handed out Naira to the artiste long before EFCC formed its taskforce, and an argument could be made against retroactive application.
But the fact that the anticorruption agency will need to be explaining itself or will need to demonstrate that it is not selectively going after some easy targets underscores how much of a distraction and a total waste of time the befuddling preoccupation with money sprayers has become. This is an issue that is better handled with persuasion, as Soludo, the brain behind this curious piece of law, had said when pushing for its passage. The legislation alongside the sudden zealotry invested in its enforcement amounts to trying to kill a fly with a sledgehammer. It is an overkill and a form of work avoidance. Our lawmakers urgently need to revisit the legitimate objections and misgivings that some senators expressed about the contentious parts of the clause on Naira mutilation in 2006, and do the needful.
