How not to cure President Buhari’s mischief, By Sufuyan Ojeifo

Perhaps those who knew that President Muhammadu Buhari was going to act in contempt of the Supreme Court order on Friday, February 10, 2023, were members of the “small team” with whom he had pursued the currency redesign policy with some explicable episcopal passion. The position of the President on deploying the strategy of mopping up excess liquidity outside the banking system, which, as claimed, had been built into war chests by politicians to prosecute the forthcoming elections, and significantly buy votes, has been both adumbrated and well canvassed by him.

So, the overarching raison d’etre for the currency redesign policy is well located in the President’s electoral promise to ensure credible, free, fair and transparent elections, and by extension, to somewhat bolster the economy. I do not have anything against the fulfilment of Mr President’s electoral promise. I welcome it. In fact, he should ensure that he fulfils a vast majority, if not all the promises he made during his electioneering before he exits the stage on May 29, 2023. As it is, it appears that the President had resolved to either sidestep or dismantle any obstacles in between him and the realization of the implementation of the currency redesign policy in the light of his prevailing disposition.

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Fortuitously, the Supreme Court happened to be the first consequential institutional victim of President Buhari’s “ruthless” and uncompromising resolve to preserve and sustain the gravitas and/or solemnity of the res of the policy, to wit: the deadline for validity of the redesigned N200, N500 and N1000 notes. In an authoritarian fashion, Buhari had issued a diktat that was not agreeable by some governors whose camp would appear to have been largely affected by the policy.

It was, indeed, curious and against reasonable expectations that some governors on the platform of the ruling All Progressives Congress (APC) would be the ones to challenge a policy of their government. The governors of Kaduna, Kogi and Zamfara states were the first to drag the Federal Government through the Supreme Court on the subject matter. The Supreme Court had granted their prayers in an ex-parte application for temporary suspension of the February 10, 2023 deadline for banning the use of the old 200-, 500- and 1000-Naira notes

No fewer than seven other states had subsequently joined in the suit as applicants while two states-Edo and Bayelsa States-had joined as co-respondents with the federal government. The purpose of this editorial intervention is not to interrogate the propriety or otherwise of the moves by the individual states that have become parties in the suit. Rather, this intervention seeks to argue that whereas the federal government (read President Buhari) might have good grounds to ignore the order of the Supreme Court, should it have done so in spite of the preponderating weight of facts that would appear to strengthen its position against the state governors? Should it not have tarried to join issues in court and get a judicial clearance before proceeding?

For instance, some have argued and I believe the President must have been told that the governors who filed the ex-parte application, upon which the order was made by the Supreme Court, had progressed in error by filing the matter at the Supreme Court whereas the court of first instance that is constitutionally saddled with hearing a matter between the state governors and the CBN is the Federal High Court. In essence, the Supreme Court had entertained the application sans jurisdiction. If that is correct, the President should have waited on the adjournment by the Supreme Court to hear the substantive motion on notice after parties would have argued their positions to possibly rule that the matter was wrongly commenced.

It is not in the place of the President to abridge time in contempt of the Supreme Court’s interim order that the parties should temporarily maintain status quo until February 15 when the parties would have been heard and the court would have ruled one way or another. Although, the Supreme Court considered it necessary to further adjourn hearing of the motion on notice to February 22 in light of about 10 states applying to join the suits either as co-applicants or co-respondents, the adjournment is still reasonably expedient, not such that should have made the President to petulantly dismiss the Court’s intercession in a barefaced act of executive recklessness.

I am sure the grouse of some of his associates about the policy is the timing. They are wont to ask why the President did not introduce the policy before his 2019 re-election if his intention was patriotic and sincere. Of course, the focal person of the team is the partisan governor of the Central Bank of Nigeria, CBN, Mr Godwin Emefiele, who had been taking the bullets for the federal Ggvernment, until the real masquerader behind the veil transmogrified into the visage of Mr President. To be sure, Section 19 of the CBN Act 2007 is very clear about the authorities that superintend over the issue of new Naira notes. The section of the Act empowers the apex bank to issue the national currencies in “such forms and designs and bear such devices as shall be approved by the President on the recommendation of the Board.”

While the President and the CBN had acted, stricto sensu, in accordance with the provisions of the Act in pursuit of the policy; and, to that extent, could be said to be in apple-pie order, their movements around the policy could be reasonably constrained, albeit, temporarily, to allow for necessary court pronouncements that would strengthen the legality or otherwise of the process, which is the essence of constitutional democracy. But as it is, the President is exercising his powers contemptuously of the constitutional role of the court, and torpedoing as it were the critical imperative of the principle of checks and balances that preponderate the doctrine of power separation in democratic milieus.

President Buhari’s ambuscade of the Supreme Court in this time of partisan frenzy and high-octane presidential power politicking betrays some morbid fear of a possible undesirable outcome of the electoral process; hence the resort to self help in achieving a pre-determined agendum of moving, outright surefooted, to aid a free and fair election through demonetization of the process. Instructively, the Naira redesign policy has, indeed, put the pressure on politicians, making vote buying pretty difficult. There is no financial liquidity in the system, let alone the excess of it, to feed that kind of hugely expensive indulgence or predilection.

This is what the president wants to achieve in the national interest. He has kept his eyes on the ball in spite of the Supreme Court. Assuming without conceding that he is a prima facie contemnor, having committed contempt ex-facie curiae, just how or what would the Supreme Court do to Mr President who is covered by the express provisions of Section 308 of the Constitution of the Federal Republic of Nigeria, to wit: immunity from prosecution? The President has stuck out his neck through his February 10 national broadcast on the validity deadline. He had picked and chosen an aspect of the Supreme Court order to obey by allowing the reissue of the mopped up old N200 notes into the system from February 10 to April 10, 2023 to ease the sufferings of the masses.

What the President has done is simply passing across a message that there is no going back on the policy implementation, which will benefit the nation in the long run much more than some individuals who are desperately seeking to upend the President’s agendum to institutionalize a legacy. But will the desperate politicians be able to exact their pound of flesh by exploring the only window of sanction against the President’s constitutional breach of violating the Supreme Court order: to wit: impeachment by the National Assembly acting in concert with the Chief Justice of Nigeria? That would be bolting the door of the stall after the horse had escaped. It would be a futile exercise in the twilight of the President’s second term in office and would very possibly not resonate well with the mood of the nation.

For now, the issue of wrong commencement of the suit at the Supreme Court instead of the Federal High Court as court of first instance in the matter, which is at the heart of the question of jurisdiction; the issue of immunity clause protecting the President against judicial sanction for contempt, and other issues arising therefrom, which have been vigorously canvassed outside of the court, should engage the attention of the Supreme Court on February 22 when parties in the suit join issues in their briefs of arguments and written addresses, that is if the Supreme Court assumes jurisdiction in the matter.

This is the route to go and not the copious references to presidents in other democracies who had ignored the rulings of their Supreme Courts for whatever reasons. Those pushing the narratives in defence of President Buhari’s disobedience of Supreme Court’s interim order are simply encouraging an egregious resort to a state of lawlessness and I believe this is not the intendment of President Buhari for his decision not to dismount the horse of the deadline of the currency redesign policy implementation.

For the records, the narratives noted, in part, that in 2018, the Canadian Supreme Court ruled that the government’s plan to expand the Trans Mountain pipeline was not properly consulted with Indigenous communities; and that the Executive, led by Prime Minister Justin Trudeau, ignored the ruling and continued to push for the pipeline’s expansion. They noted that in 2015, the Argentine Supreme Court ordered the government to allow the country’s largest media group, Grupo Clarin, to continue to operate as a single entity, but that the Executive, led by President Cristina Fernandez de Kirchner, ignored the ruling and broke up the media group.

They continued: In 2019, the Japanese Supreme Court ruled that the government’s system of gender-based distinctions in civil law was unconstitutional, but that the Executive, led by Prime Minister Shinzo Abe, ignored the ruling and did not take action to change the law. In 2017, the Italian Supreme Court ruled that the government’s policy of denying citizenship to children of immigrants was unconstitutional, but the Executive, led by Prime Minister Paolo Gentiloni, ignored the ruling and did not change the policy.

In 2019, the Spanish Supreme Court ruled that the government’s plan to exhume the remains of former dictator Francisco Franco from a public mausoleum was legal, but the Executive, led by Prime Minister Pedro Sanchez, ignored the ruling and faced resistance from Franco’s family; while also in the same year, the French Supreme Court ruled that the government’s plan to use facial recognition technology to check people’s identities in public spaces was illegal, the Executive, led by President Emmanuel Macron, ignored the ruling and continued to develop the technology.

In 2014, the Australian Supreme Court ruled that the government’s policy of detaining asylum seekers on the Pacific island of Nauru was legal, the Executive, led by Prime Minister Tony Abbott, ignored the ruling and continued to detain asylum seekers on Nauru; whereas in 2018, the German Supreme Court ruled that the government’s plan to allow certain diesel vehicles to continue to operate in urban areas was illegal, the Executive, led by Chancellor Angela Merkel, ignored the ruling and continued to allow the vehicles to operate.

Though, the list of countries and leaders who ignored their countries’ Supreme Courts appears in exhaustive, I sincerely do not think this is the narrative that should be driven to defend President Buhari’s disobedience of Supreme Court order. To cure the President’s mischief, let all parties step into the temple of the Supreme Court on February 22, 2023, to be heard by their Lordships for their obligatory ruling one way or another, simpliciter.

● Ojeifo contributed this piece from Abuja via ojwonderngr@yahoo.com