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LANRE ADEWOLE examines the likely outcome of today’s proceedings and the consequences for the polity.
72 hours to the presidential and federal legislative elections, all attention is on the Supreme Court as it resumes hearing in the dispute between the Buhari administration and 10 governors elected on the ruling All Progressives Congress (APC) over the currency swap policy of the central government.
Expected to dominate proceedings today is the alleged overreach of the ultimate court by the president and leader of his party, the APC.
Already, the governors have placed before the court a request to have the president censured, and his last week’s proclamation on the cessation of N1000 and N500 notes as legal tender nullified.
The suing states are Kaduna, Kogi, Zamfara, Ondo, Ekiti, Katsina, Ogun, Cross River, Sokoto, and Lagos all controlled by the president’s party.
Incidentally, the two states; Edo and Bayelsa, that have the back of the president and joined the dispute as defendants alongside the central government are ruled by the opposition Peoples Democratic Party (PDP), signaling the suspicion that the currency policy is more of a civil war in the ruling party.
Making a case for the repudiation of the president’s proclamation, the aggrieved states through their counsel, Abiodun Jelili Owonikoko, SAN, argued that Buhari’s directive extending the validity of old N200 notes for 60 days and his ban on old N500 and N1,000 notes are an “unconstitutional overreach and usurpation of the judicial power” of the Supreme Court handling the dispute.
He cited Section 232(1), Section 6(6)(b) and Section 287(1) of the 1999 Constitution as amended, which cover the protection of the Supreme Court’s dignity and compliance with its orders by all persons and authorities.
“Contrary to the order of the Honourable Court, the substantive 1st defendant through the President of the Federation, and its agent, the Central Bank of Nigeria, have repeatedly released statements that the old naira notes are no longer legal tender, hence resulting in misleading the general public on what the status quo to be complied with, pendente lite, should be,” the relief being sought, partly read.
The fight over jurisdiction
Beyond the alleged overreach of the president, another issue to dominate the proceedings today is the protest by the central government through the Attorney-General of the Federation and Minister of Justice, Abubakar Malami, that the apex court should not have even entertained the governors’ suit, let alone issue the interim order, restraining the administration.
In the fight-back initiated by the AGF through his counsel, Mahmud Magaji and Tijanni Gazali, both SAN, the jurisdiction of the Supreme Court is being challenged and the Buhari administration wants the suit dismissed.
The Federal Government argued in a notice of preliminary objection dated February 8, 2023 that the apex court lacks jurisdiction to hear the case.
Malami and his team argued that the plaintiffs (the governors) have equally not shown reasonable cause of action against the defendant(s), claiming that the suit falls within the exclusive jurisdiction of the Federal High Court in matters of monetary policy of a Federal Government agency under Section 251 of the Constitution.
According to the central authorities, “The claims or reliefs are not against the federation, but the Federal Government and its agency, the CBN. The Federal Government of Nigeria is distinct from the Federation or the Federal Republic of Nigeria. The plaintiffs have no grievance whatsoever against the Federation of Nigeria.”
The arguments
An interesting dimension to today’s proceedings is the party the seven-man panel would allow to have the first shot. A week ago when the matter came up for hearing, the preliminary objection of the Buhari administration was to be heard when seven more states showed up, with joinder applications, to team up with the original three applicants of Kaduna, Kogi and Zamfara States. After their requests were granted, the matter was adjourned for the defendants (FG and Edo and Bayelsa), to make a sense of the claims of the newcomers. However, the counsel to the original three applicants raised the alarm that the federal authority, through the CBN, was disobeying the interim order of the court, by insisting that the higher denominations of the old naira notes were no longer legal tender. The panel chair, Justice John Okoro asked the applicants’ counsel to document his allegation properly before the presidential proclamation that removed all doubts about government’s interpretation of the interim order. With the Central Bank not joined as a necessary party by the governors, top operatives of the Buhari administration are of the opinion that the president was right to have intervened with the broadcast that temporarily returned the legal tender status of old N200 notes. Now with both parties armed with points of law to prove, who the apex court would take first,could further raise the stakes, just three days to the elections.
If the preliminary objection of the administration is favoured, then the issue of jurisdiction would have to be exhausted and ruled on before the matter can move forward. The suit can also come to a sudden death, if the apex court rules that CBN is a necessary party and its inclusion will force the matter to the Federal High Court. This would rob the apex court of the jurisdiction of a court of first instance in the matter, though it can still hear arising appeals. That would mark a major victory for the president and the opposition governors supporting him.
However, the 10 applicants may insist that the Buhari administration can’t be heard at all for alleged overreach of the ultimate court and possibly invite the court to explicitly renew the original interim order conferring legal status on all the old denominations. The discretion that the court will likely exercise in such scenario might be dictated by the mood of the panel towards the federal government and its alleged disobedience of the interim order. If the order is renewed and there isn’t a definite ruling on the issue of jurisdiction, the polity may be further charged, especially if the federal government decides to stick with the president.
The Okoro factor
The far-reaching implication of today’s proceedings on the coming poll is why stakeholders are also focusing attention on the chairman of the panel, Justice Okoro, and his recent history with the ruling APC and President Buhari.
Okoro was one of the two Supreme Court justices arrested for alleged corruption during the infamous 2016 midnight raid of judges’ homes by the Buhari administration. Detained for days by the Department of State Service, Okoro had written a damning letter to then Chief Justice of Nigeria, Mahmud Mohammed, alleging that Rotimi Amaechi, then Minister of Transportation, delivered a message to him that the ruling party wanted to win Akwa Ibom, Abia and Rivers, by hook or crook.
He alleged, “Mr. Amaechi said All Progressives Congress mandated him to inform me that they must win their election appeals in respect of Rivers State, Akwa Ibom State and Abia State at all costs.”
For Akwa Ibom State, he alleged that he sponsored Mr. Umma Umana, candidate of All Progressives Congress for the election, and if he lost Akwa Ibom appeal, he would have lost a fortune.
“Mr. Amaechi also said that he had already visited you and that you had agreed to make me a member of the panel that would hear the appeals. He further told me that Mr. Umana would be paying me millions of naira monthly if I cooperated with them. I strongly believe that my travail is not undermined but with the verbal report I made to you on 7th February 2016 about the visit to my official residence by Honourable Rotimi Amaechi, former governor of Rivers State and now Minister of Transportation.”
Amaechi dismissed the allegation as a figment of Justice Okoro’s imagination and threatened to sue him, though he never did.
As a party, APC stood strongly behind the raid, with the Minister of Information and Culture, Alhaji Lai Mohammed, mounting a stout defence. Akwa Ibom State chapter of the party also lambasted Okoro in a statement issued by its then-spokesman, Ita Awak.
“We cannot fathom what manner of thoughtlessness and recklessness was responsible for a Justice of the Supreme Court of Nigeria venturing such an absurd self indictment” Awak wrote, of the Justice’s explosive allegations.
Due to the pressure from the Buhari administration, Okoro was forced to stay off the Bench for a while, but was eventually recalled for work when he was not charged by the secret police. Three years after the sting operation that was condemned worldwide, DSS cleared Okoro and returned to him $38,000 seized at his residence, among other items.
Justice Sylvester Ngwuta, the second Justice of the apex court arrested alongside Okoro died on 7 March, 2021.
Okoro is in line to become the Chief Justice of Nigeria in 2028 after the expected tenure of Justice Kudirat Kekere-Ekun as the second female CJN in history, when the incumbent Kayode Ariwoola retires next year.
Status quo debate
The debate in the legal community weighs heavily against the president but he has an unusual supporter in a former chairman of the National Human Rights Commission and Professor of Law, Chidi Odinkalu.
The human rights activist, who has been a thorn in the flesh of the Buhari administration, says the president is right to make adjustment to the implementation of the policy, despite the pendency of the suit challenging it.
He warned the Supreme Court to tread cautiously and not misuse its power, arguing that no court has the power to give directives on the monetary and currency system of a country.
Odinkalu said Buhari did not breach the orders of the Supreme Court, adding that the action of some state governors against the president’s directive amounts to treason.
“The Supreme Court, to the best of my knowledge, has not said what people are presenting it to have said, because that is not the province of a court. It is a misplacement of the capabilities and assets of a court for it to get to that kind of thing,” he said.
He further reasoned, “I suspect what the Supreme Court has said is ‘preserve the status quo ante until we hear the case’ — status quo antebellum, which is what the thing was before the onset of litigation. Now, the question then becomes what was the status quo antebellum that you are trying to preserve?
“And this is where the laziness of the judicial system, as well as the limitations of the law, actually come to full view because status quo antebellum actually was the central bank circular on exactly when this thing should stop. I suspect this is the advice the president got. He has not breached anything.
“A currency system cannot be legislated or ordered into existence by a court and every court has to be careful about how it uses or abuses its authority and competence. A currency system is a promise backed up by the guarantee of a central bank, which is such basis of monetary economics.
“If the central bank that guarantees a monetary system withdraws its support, you cannot legislate that into existence because the trust that backed up that monetary system has collapsed. One million Supreme Court orders will not bring into existence a currency system that has lost legitimacy.”
