The Supreme Court’s grant of an ex parte injunction in the monetary policy case brought by three states government, Kaduna, Kogi and Zamfara against the Federal Attorney General on February 3, 2023, raises serious questions of law that the court will have to address on the February 22 adjourned date. The order also interrogates the doctrine of separation of powers in a presidential system of government. Each of the three branches of government (executive, legislative, and judicial) are kept separate, and no branch is allowed to exercise the powers of the other branches.
The suit instituted against the federal government sought a restraining order to stop the full implementation of the naira redesign policy of the Central Bank of Nigeria (CBN). CBN which is a juristic person was not joined as a party even though the states alleged that the federal government was acting through the CBN. The states are seeking the following remedies: (1) a declaration that the demonetization policy of the CBN is not in compliance with the extant provisions of the constitution, and the Central Bank of Nigeria Act, 2007; (2) a declaration that the three months’ notice given by the federal government through the CBN is in gross violation of the provisions of Section 20(3) of the CBN Act which specifies that reasonable notice must be given; and a declaration that by the express provisions of Section 20(3) of the CBN Act, the FG through the CBN has no power to issue a timeline for the acceptance and redeeming of banknotes issued by the bank, except as limited by section 22(1).
The Federal Attorney General (AGF) in his response dated February 8, 2023, raised the issue of forum shopping by contending that the Supreme Court lacks original jurisdiction to entertain the case. The AGF further contends that “the plaintiffs have equally not shown reasonable cause of action against the defendant,” and that the suit has disclosed no dispute that invokes this (Supreme) Court’s original jurisdiction as constitutionally defined. He therefore asked the court to strike out the suit for lack of jurisdiction.
Under section 232 (1) of the 1999 Constitution of the Federal Republic of Nigeria, the original jurisdiction of the Supreme Court is a special one, which is limited to suits between the Federation and a state or between states and no more.
That legal controversy exacerbated with the President’s media broadcast of February 16, 2023, which amongst other things declared that N500 and N1,000 notes are no longer legal tender in what appears to amount to noncompliance of the ex parte injunction, and the joinder of more states requesting the Supreme Court to void the president’s directive. Allegations of contempt of an order of the highest court which must be obeyed and charges of breach of the rule of law were leveled against the President. However, given the autonomy granted to CBN by law, can the President validly “order” it to take any action or rescind its decision on redesign of the Naira notes as is presently being canvassed by some aggrieved citizens, without running infoul of the law?
As an initial matter, Section 1 (3) of the Central Bank of Nigeria Act, 2007 established the legal autonomy of the CBN by providing that “In order to facilitate the achievement of its mandate under this Act and the Banks and Other Financial Institutions Act, and in line with the objective of promoting stability and continuity in economic management, the Bank shall be an independent body in the discharge of its functions. Accordingly, and for the purposes of grounding the Supreme Court’s original jurisdiction, can the issue of CBN’s monetary policy be properly classified as a dispute between the states and the federal government of Nigeria or a dispute between the states and CBN? This is worrisome, since the CBN Act at section 1 (2) provides that the CBN shall be a “body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.”
Further, the Federal Government of Nigeria which was sued as the only defendant in the case, is not synonymous with the Federation, which is required to ground the original jurisdiction of the Supreme Court. The constitution clearly defines “Federation” as the Federal Republic of Nigeria in Part IV Interpretation, Citation and commencement. It will therefore be interesting to see how the Supreme Court will address this fundamental issue of jurisdiction without which the court will not have the constitutional authority to entertain the case in the first place. Since lawful jurisdiction is what confers legitimacy to the order issued by the highest court on February 3, if the court finds that it lacks jurisdiction, the issue of contempt by the President becomes moot. Moreover, can it be legally right to restrain the Federal Government, or hold the President in contempt, assuming that he does not have legal immunity, for the act and monetary policy of CBN in light of its legal autonomy and statutory recognition as an independent body, separate from the Federal Government of Nigeria for the purposes of legal proceedings?
Furthermore, the case raises some constitutional dust on whether the judiciary can supervise the executive monetary policy to determine its reasonableness and/or effectiveness in breach of the doctrine of separation of powers or whether such supervision is reserved by the constitution to the voters who elected and gave the executive the mandate to govern? In other words, is bad governance subject to judicial oversight and review? In the case at hand, there is a coloration that the states are seeking to influence or encumber the policy decision making prerogative of the CBN, by questioning among other things, the sufficiency of the time stipulated by the CBN for the currency change exercise.
This raises the question of what the executive’s reasonable constitutional response should be in a situation where the Supreme Court proceeds in clear breach of the constitutional provision to hear a case without original jurisdiction and legal capacity to hear and determine the judicial proceedings? Can the President rightfully ignore the ruling issued without proper constitutional authority since he is sworn to protect the constitution and not the unconstitutional judgement of the Supreme Court?
Going by the constitutional history of the United States of America, from whom we modeled our constitution, it is rare for presidents to ignore the decision of the Supreme Court, though it has been done. Presidents generally see it as their duty to enforce valid court rulings. Most quietly accept the bad rulings, some are challenged and few outrightly ignored. For instance, in 1861, President Abraham Lincoln was recorded as having ignored Chief Justice Roger B. Taney’s order finding unconstitutional Lincoln’s suspension of habeas corpus rights in 1861, early in the Civil War. In 1832, President Andrew Jackson defied a Supreme Court ruling to invade Cherokee land, which eventually led to the mass removal of Cherokee people from Georgia now known as the Trail of Tears.
The present clash between the Nigeria Supreme Court and the President will definitely have long lasting implications for the country’s constitutional development and jurispudence.
Chuma Uwechia, Esq, a New York based Attorney is admitted to both the United States Supreme Court and the Nigerian Supreme Court. He is an author of two books on Nigerian law.
uwechia@gmail.com
