Cash Swap Policy for Maximum Hardship

I enjoin the Supreme Court to do the needful and exert its lawful authority, by firstly, demanding that the Federal Government complies with its interim injunction of February 8 in the 3 AGs v AGF Currency case. If the Government persists in its non-compliance, the motion on notice for interlocutory injunction should not be heard. The effect of this will be that, the interim injunction will stay in place until there is full compliance with the court order. It is trite law that, all court orders must be obeyed until they are set aside. See the case of Rossek & Ors v ACB Ltd & Ors (1993) LPELR-2955(SC). In President of the Federal Republic of Nigeria v NASS & Ors (2022) LPELR-58516 (SC) per Saulawa JSC, the Apex Court held inter alia thus: “….the Supreme Court has an onerous duty to jealously and courageously guard its jurisdiction, with a view to preserving the sanctity (sacredness) of the rule of law and its inviolable independence. It is trite that, of the foremost characteristics of the rule of law, is the absolute supremacy or predominance of regular courts, as opposed to arbitrary power. In the sense that, no man is above law….”. I submit that, the President and CBN are using arbitrary power, and they are not above the law. 

I have consistently maintained that we seem to be living in some form of military democracy, with Baron de Montesquieu’s doctrine of separation of powers and the three arms of government being checks and balances on each other, applicable in our democracy by virtue of Sections 4-6 of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2018)(the Constitution), not functioning properly. If it did, it would be unheard of for the Executive to disobey the order of a court, let alone that of the highest court in the land so flagrantly. See Section 6(6)(b) of the Constitution. This administration has used some of its agencies to perpetuate its despotic tendencies, for example, EFCC & DSS. The CBN too, has also been a willing tool in the hands of President Buhari’s administration, when called upon to push some arbitrary agendas. I recall that after the October 2020 #EndSARS Protests, in order to punish Protesters for demonstrating, without the requisite ex-parte court order, the CBN directed that the Banks should freeze the accounts of some of the Protesters. See the case of GTB v Adedamola & 2 Ors 2019 5 N.W.L.R. Part 1664 Page 30 at 43, where the Court of Appeal held that, there must be an order of court to freeze an account. 

Disobedience to the Supreme Court Order

Last Thursday, in disobedience to the Supreme Court’s order therein, President Buhari’s directive ordering that the life of the old N200 note be extended from the initial February 10, 2022 deadline to April 10, 2022, is in contempt of the Supreme Court’s interim injunction of February 8, 2022, clearly restraining the February 10 deadline until the hearing of the motion for interlocutory injunction which was initially fixed for February 15, but was adjourned till tomorrow. I submit that, it is also an attempt by the President to sit as an appellate court over the decision of the Supreme Court, and render the court’s decision nugatory before it is determined, contrary to Sections 235 & 287(1) of the Constitution. In Brittania-U (Nig.) Ltd v Seplat Petroleum Development Co. Ltd & Ors (2016) LPELR-40007 (SC), the Apex Court held inter alia that “…..an interim order of injunction is to last for a short period pending the determination of the motion on notice, and not to hang on the opposing party, or to overstay”. Order 3 Rule 15 of the Supreme Court Civil Procedure Rules 2019  permits the Apex Court to issue any ex-parte order on terms that it thinks are just. Nowhere in the Supreme Court Rules, does it provide that an ex-parte order can only last for seven days, or that there must be an express extension of an ex-parte order, as I have heard repeatedly argued by some Lawyers who are obviously not abreast with the Rules!

With all due respect, the action of President Buhari, disobeying the Supreme Court’s order of interim injunction, not only shows disdain for the Supreme Court (which has far-reaching consequences on the rule of law, and the public perception of the Apex Court and court orders in general) and is tantamount to varying the Supreme Court order (which is unheard of in law), it also amounts to ‘contempt ex facie curiae’, that is, contempt outside the face of the court, an action that is “an affront to the authority and dignity of the court”. See Brittania-U (Nig.) Ltd v Seplat Petroleum Development Co. Ltd & Ors (Supra); Omoijahe v Umoru & Ors (1999) LPELR-2645 (SC). However, by virtue of Section 308 of the Constitution which gives the President immunity from suit, no contempt proceedings can be brought against him. 

Security and Welfare of Nigerians 

Why do the Federal Government and CBN have to be cajoled or constrained in court, to step down a currency policy that is not only causing the people acute anguish, but is wreaking havoc, and creating violent unrest? See Section 14(2)(b) of the Constitution on the security and welfare of the people being the primary purpose of Government. In 2023, people have resorted to the ancient practice of trade-by-barter of 6000 BC, just to survive! I saw a video in which a man who sells provisions, gave a food seller detergent in exchange for food!

Last week, videos from the Southern parts of the country were circulated, showing outbreaks of violence, escalating to the point where we saw corpses lying on the streets, as well as destruction of property. Ojota, Mile 12 and Lagos Ibadan Expressway were under siege last Friday. Never have I seen such unrest and instability, on the eve of general elections. But, the question is, why is the Government fuelling it, inciting the people because of the shoddy implementation of its currency policy? 

Governors’ Intervention 

We are all aware that, there may probably be nothing altruistic about the reasons why the Governors instituted the action at the Supreme Court. Over the years, Nigerians have become cynical as a result of what we have experienced with most of our leaders, past and present – their mind boggling corruption and self-centredness; and so, it won’t be far-fetched to suspect that their intervention may be out of self-interest and not about their love for their people! Indeed, some of them may have many old notes stashed away, which may be on the verge of being rendered useless! 

In 2019, Governor El Rufai who is spearheading the case against the Federal Government and insisting that the Supreme Court’s interim order be obeyed, himself showed the same contempt for the rule of law and court orders, when he sought to vary the bail conditions set by the Kaduna State High Court in the El Zakzaky’s case. It’s no surprise therefore, that his sincerity and that of his brother Governors, are being questioned. 

But, be that as it may, sometimes, we are constrained to look beyond the messenger to the message. And, the message is that some of us are genuinely concerned about the effect this troubling policy is having on the common man, and the pockets of riots and violence springing up. The new currency policy, is antithetical to Section 14(2)(b) of the Constitution. 

Vote-Buying

Interestingly, one of the major reasons given for this currency policy, is to curb vote-buying in the elections. I submit that, the purpose of monetary policy by the Central Bank, is not to curb vote-buying; it is to enhance price stability, control inflation etc. 

In any event, who says that Naira is the only currency, that can be deployed for vote-buying?! Only a chump or simpleton, would take such a narrow view of vote-buying techniques, particularly in this digital age that we live in! At best, the new currency policy is a surmountable inconvenience for vote-buyers. For one, the Dollar, Pound Sterling and Euro all come in small denominations, and they can also be used as an alternative to Naira for vote-buying instead. They could have been purchased, from the time this policy was announced. Provisions like rice, cooking oil etc, which have always been a traditional vote-buying method, could also have been deployed since October 2022, purchased with the same cash Government seeks to mop up. For voters with bank accounts, transfers can also be made to them. 

Having established that other methods beyond Naira cash can be used for vote-buying, thereby possibly defeating one of the main purposes of this new currency policy, is it then worth it, to make Nigerians suffer this much? What then, do you even call a Government, that is instrumental to making its own country unstable and insecure, as a result of its irrational policy? 

Also worthy of note, is another illegality of this policy, because Section 20(3) of the CBN Act 2007 envisages a currency swap, and not the currency confiscation that Nigerians are experiencing, by not being able to get the new currency in exchange for the old notes deposited in the Banks. A news story circulated recently, of a Manager of one of the Zenith Bank Branches who allegedly accepted N300 million old currency from a PDP Politician, in exchange for N250 million new notes. It is true that some of the Bank staff may also be complicit in sabotaging the policy and making life more unbearable for the people, by selling the scarce new notes to the highest bidders for their own personal gain, instead of making them available to the public. Sadly, in the end, the masses are always the ones forced to make all the sacrifices and suffer the pain, not the leadership, the politicians and the elite; yet, they never really reap the fruits of their labour!

Losses v Benefits

Just like the Indian example I cited last week, whose losses outweighed its benefits, Indians discounted their ‘black money’ in old Rs500 & Rs1,000 notes in exchange for other denominations, like how politicians are doing so here, as we have seen in the aforementioned Zenith Bank example, thereby concentrating the scarce currency in the same hands that the policy purportedly set out to take it from. Again, black money is not always held in cash, but in real estate, shares, gems and other means. 

In terms of reducing kidnapping etc, we have already seen videos of criminals, kidnappers and terrorists with hordes of the new Naira notes, while as far as counterfeiting is concerned, before the new currency has even been sighted by millions of Nigerians and become common tender, it is already being counterfeited. We saw a video of two men in Enugu being arrested, for trying to sell fake new N1,000 notes to POS Merchants. 

Loading of N200 notes into ATMs, will also result in less money available, as an ATM loaded with N1,000 can take up to N8 million, N500, N4 million and N200, N2 million. I have also noticed that the internet banking platform of my Bank has become extremely unreliable. Last Friday, it took countless attempts over 24 hours, before I was able to do any transfers. The Bank networks, are obviously unable to cope with the new volume of transfers. How then, can Government convince right-thinking people that a policy which it wasn’t prepared for and therefore, cannot be properly implemented, having no reliable alternatives, is good? 

Conclusion 

My point? It is obvious that most of the objectives of this shot gun policy have failed right from the start, and for now, its only success has been to plunge Nigerians into intense hardship. This is my main concern. No one is buying the alibi, that the policy is for our greater good in the future.

And, for those in the opposition parties applauding this policy, especially the PDP (and those who were formerly in the PDP and have now berthed to other parties), one is not surprised – PDP, a party with politicians who looted the Nigerian treasury to the shameful extent that it did, to the detriment of the Nigerian people, cannot be expected to care less about the welfare of the people, or whether this currency policy hurts them or not. All they care about, is the fact that they may stand a better chance of winning the elections, since the cash crunch may seem to favour them. To them, it doesn’t matter if the people starve to death in the meantime. Funny enough, people have started to question who this administration seeks to favour with this currency policy, especially with the application for joinder by two PDP Governors as co-Respondents with the AGF in the court case, since the public is definitely not benefiting from it!

My concern will always be the welfare of the people. The political game presently being played by Government in the name of a new currency policy, is a typical example of the African proverb: “When the elephants fight, the grass gets trampled”. It portrays some elements of Machiavellism, that is, “…. masking true intentions, acting against mercy and humanity”, in order to have their way. In this case, the APC Administration can be said to be principally fighting against its party members seeking elective positions, because their irrational currency policy and lingering fuel crisis reflects most badly on them, since they are all members of the same APC and the people are up in arms against APC; while the people are being trampled upon, by being made to suffer hardship resulting therefrom. 

In any event, vote-buying is not exclusive to APC politicians alone – most politicians, irrespective of their political leanings, partake in vote-buying. Nigerians witnessed a similar scenario of delegate-buying play out, in both the PDP and APC primaries last year. In fact, did Professor Moghalu not allege that his co-Presidential aspirant in ADC who clinched the ticket, also bought delegates?! No matter how laudable the idea behind Naira redesign policy may be because of what it purportedly seeks to achieve, for now it has become a choice between this badly implemented policy and whether in some cases, people live or die. People have no money to eat, no money for transport to go to work, and in the case of emergencies, no money to get to the hospital, to pay for treatment (even Government hospitals are not completely free of charge) and buy medication. By the way, the N20, N50 and N100 are not affected by this policy, so why are they not freely in circulation?