In the last couple of months, there have been agitations around the issue of the new monetary policies rolled out by the Central Bank of Nigeria (CBN), particularly the aspect relating to the cash withdrawal limit and the redesigning of certain denominations of the country’s currency, the N1,000, N500 and N200 notes. Of course, this is not equally unconnected with the period allowed for exchanging the old notes for the new notes, which was initially stipulated to be three months but eventually extended by 10 days. Ordinarily, there would have been nothing awkward about redesigning the currency notes, the policy, which I initially condemned due to my view that it was not our next priority, economic wise, and also on the basis of wastage in terms of the cost of replacement. During the period of the return of old notes within the three-month window stipulated, there was really no significant uproar except that the people considered the new notes not to be actually redesigned but simply repainted.
The discontent started with the reality that the new notes were not forthcoming in exchange for the old notes deposited and the cap placed on the withdrawals. Without fear of contradiction, and I repeat, for the umpteenth time, not so much legitimate old notes were still outside the financial system as at the close of the initial period of the three-month permissible period. From my perspective, how much cash would anyone genuinely have that he would not be able to deposit within the period of three months except the owner of such sum acquired same illegitimately? Why should anyone keep more than N50 million cash at home at any time? With N50 million, it will take a maximum of 50 days or maximum period of two months to deposit at the rate of a million naira per day. So, the challenge really was the inability of the citizens to obtain the new notes and not really that of replacing any amount of old notes. This point was mixed up in the agitation that trailed the controversy around the redesigned notes. This is where most of our governors seized the window to advance their own parochial interests.
Rather than squarely insisting on the release of sufficient notes for the people and the removal of the cash withdrawal cap, they seemed, in my view, to be more interested in how they would recycle the old notes in their custody into the financial system. This is my point of divergence in the first instance with the agitation. The second area of dissent with them is the compelling need to deemphasize the use of money in our elections. To a large extent, I assert that this objective was achieved as I can say, without fear of contradiction, that this election was substantially devoid of vote buying. The successful candidates, to a large extent, succeeded on the strength of their campaigns and structures, and not so much of money influence. This is a feat nobody could have envisaged in recent times. Beyond this point, I repeat, categorically again, that the people have suffered more in the hands of the government due to this cash squeeze than even the politicians. The political class know their ways and continuously outsmart the system in this regard. It is really the masses that are bearing the brunt. The leadership of the country have succeeded in killing a mosquito with a sledge hammer at the end of the day.
There is really no doubt that the objective of curtailing the influence of money on the election could have been achieved without letting the blood of Nigerians. I believe that with adequate intelligence, the enforcement agents could locate where the illicit funds or the funds targeted at vote buying are kept. In fact, at times, one suspects that the security agents do know but for compromise, fear or cowardice, they look the other way. Since the government chose this inglorious path, why must the people be the ones to carry the can and bear the sufferings, if not out of political solidarity with their political class. Must the masses be the scapegoats? Be that as it may, this is not my destination.
The crux of my engagement today is actually the appreciation of the apex Court judgments on the subject. I am aware that we have been warned to desist from criticizing the decisions of the court in a recent press release. I really do not understand the court to be saying, however, that we cannot comment on their decisions nor even evaluate them where necessary. Without such review, certainly our laws are not likely to develop as the jurisprudence will definitely be imperiled. The same Supreme Court has told us in recent past that the court is not infallible as it only seems so simply because its decisions are final. It is against this background that I now take the liberty to say a few words on the judgment. Let me caution that I have not read, much less digested the reasonings of their various Lordships but taking it superficially in the context of the main order made and from the snippets reported by colleagues in the court on the day of delivery of the judgment.
For the purpose of our conversation, the various reports I read appear unanimous that the apex Court has directed that the old notes, in terms of 1,000 and 500 naira denominations be accepted as legal tender till the 31st day of December, 2023. In this conversation, I am not really interested in the legalistic aspects of the decision as this is continuously being x-rayed in the various social media law platforms and the debate on it might be eternal or linger on for some time. My focus is just simply in the aspect of justice. The essence of a court of law is simply to dispense justice and nothing more. I am not a believer in the concept of substantial or technical justice. Justice must always be simply justice, and not justice according to the law alone.
The apex Court has been drumming this to the hearings of all citizens for some time now but it seems that it has not really sunk amongst us, lawyers. As much as I blame us, the apex Court is equally unhelpful at times when there appears to be some sort of summersault in some cases when it comes to this issue. That is to say, some decisions appear to fall in the realm of technical justice that the citizens merely gaze and unable to comprehend, justice-wise. Of course, this is not suggesting that the apex Court’s decisions must always reflect the sentiment of the people. God forbid! The point I am struggling to make is that given all parameters met, judgments of courts must meet the expectations of society and justice must never be sacrificed for technicality. In advocating this position, I plead to be considered as a layman expressing an opinion, and not as a legal practitioner. The people want to see justice according to ‘commonsense’ as much as possible.
This brings me to the role of law in society. Law is expected to be a tool of social engineering and nothing else. It is through the instrumentality of the law that the society expects peace and order. This is the import of the social pact that arose out of the exit from the state of nature in which Thomas Hobbes described lives then to be nasty, short and brutish. It was simply the era of the survival of the fittest. So, if law is recognized and regarded in this light, the interpretation of the letters of the law must, at all times, be purposeful. Decisions of courts must, at all times, reflect the essence of the law and as much as the practicality of meeting the expectations of society. It is when this happens that justice will be said to have been served. I have often said that our Judges and Justices are not ghosts that are oblivious of the occurrences around them. I am certainly sure that they do not operate in another planet than the one we occupy. If that assertion is correct, it then means that they must, at all times, pay attention, and not lip service, to the realities in the society in which they operate. It is when this happens that confidence is engendered in the courts.
The people must not lose confidence in the justice system at any point, otherwise the rule of law, will not only lose its value but also its potency. The implication of the rule of law being threatened or displaced is that the rule of man kicks in. The import of this is anarchy and a return to the era of the survival of the fittest. We cannot afford to be returned to the state of nature.
It is in the light of the foregoing that I submit that the latest decision of the apex Court on the new notes meets the threshold of justice. One might not agree with the legal plank of the conclusion, which is expected, particularly amongst us lawyers. The truth, however, is, does it meet the expectation of the people and the society? In my humble view, I say ‘yes’.
There is obviously sufficient evidence of mismanagement of the policy. There is greater likelihood that more causalities will develop from the continuous excruciating situation of cash scarcity. Recently, Festus Adedayo, a newspaper columnist and political analyst, reminded us of a large number of people that died during a similar naira redesign in 1984 among which was a popular Yoruba bard, Ayanyemi Atokowagbowonle. A repeat of that incident almost forty years after does not portray us as progressing. The masses are not only more marginalized with their small enterprises collapsing daily but more of them are dying. The situation is becoming unbearable.
All these, without even peeping into the legalism around the suit, justifies the conclusion and the consequential order made by the Court. This, in my view, is the threshold of justice that decisions of court must meet. It must be constantly borne in mind that the apex Court is first and foremost, a policy court. Within this competence it has acted but my reservation is the further attempt at cloaking the decision with legality. It is unnecessary as that is where challenges come in. For instance, if truly the Court held that there was non-compliance with the Central Bank Act in the introduction of the policy, why pronounce continuity of the policy rather than terminating it? This Court already told us that you cannot build something on nothing, particularly on proven illegality. Here lies my confusion.
However, I believe that there is a lot to learn from the Supreme Court of India whose decisions have greatly impacted not only the governance of the country but the society. As I commend the apex Court for towing this path of justice and I enjoin the Court and other courts in the land to emulate this posture in the determination of cases before them. Kudos and more grease to Your Lordships’ elbows. As an aside, let me seize the opportunity to appeal to the Central Bank Governor to ensure that he continues to be available to the country till the inauguration of the next government. He must remember that we are in it together and his continuous ‘exceptional’ service will be required till and possibly after that period. This is a critical period of transition that his attention is required and all foreign engagements need to be cancelled in the national interest. He must convince the next administration that he is the ‘messiah’ still in hot demand.