I hear the Supreme Court of Nigeria

It is just as well that less than 24 hours after President Muhammadu Buhari denied that he instructed the Attorney-General of the Federal and Minister of Justice, Abubakar Malami, and the Governor of the Central Bank of Nigeria, Godwin Emefiele, not to obey the Supreme Court judgement of March 3, Emefiele took immediate steps to obey it – at least partially. He instructed the commercial banks to take in and pay out N1, 000 and N500 notes. 

This is one of the problems with the policy of the naira redesign. It is not the only one. The more critical of these problems is the currency restriction on individuals. Thousands of people wait outside the gates of their banks daily to get some of their money. Think of the wasted man-hours and the frustration that have become their lot. Emefiele is yet to respond to that. 
We may never know the full facts about the president’s claim but at least we now know something about how the wind that blows this policy is generated.

Buhari neither instructed them to disobey the judgement nor to obey it. Both men acted on the basis of precedent. The president decides and they obey. When the president is mum, their own action is frozen. It is part of our tradition that if the big man denies something it is suicidal for the small man to contest it. So let it be.

Emefiele had ignored the judgement for more than two weeks. He ignored every sane and sensible critique of the monetary policy that has done more harm than good to fellow citizens and the national economy. It has sunk many more Nigerians below the poverty line and deepened our collective misery and frustrations. The policy will itself go down in our political history as the first time a central bank governor was recruited into a purely political battle using the instrumentality of a monetary policy as a deadly bazooka in the battle of the political titans. 

Sometime ago, I thought someone was looking for a scapegoat for a policy that went awry. Governor El-Rufai of Kaduna State has consistently blamed Emefiele for both the policy and its implementation. But the manner in which the governor has defended Buhari does not do much good to his image as a hands-on president who takes decisions he can defend. I would hate to think that the president is so manipulated by the bank chief that he submits to his every whim. However powerful Emefiele may be, he is but an adviser to the president. Buhari is not bound to take his advice if he considers it either wrong or inimical to his policy or policies.

Whatever Emefiele does or fails to do with the judgement of the Supreme Court of Nigeria fully or partially, we need to revisit the judgement because of the issues it raised which are critical to how the Federal G overnment treats the states and how we are governed as opposed to the proper and constitutional way we should be governed as a federation. 

From the totality of the judgement, everything about this controversial policy was wrong. It failed to follow due process in conception and implementation. I welcome the pronouncements of the apex court because through it, it has said what it may have always wanted to say but was too diplomatic to be as brutal as this. For the record, Justice Agim delivered the judgement.

I begin with the weightier issues concerning the nature of our federalism. The Federal Republic of Nigeria is made up of the centre and the constituent units, the states. The states are not administrative units of the Federal Government although all pupil lawyers know that successive heads of the Federal Government have so treated them. Ours not being a unitary system of government, without the constituent units, our federal system will merely blow in the wind. We have managed to construct a strange federal system on a unitary system, thanks to the systematic grab-grab greed of the centre.

Should a major policy, one as strange and as flawed as the Naira redesigned policy of the Buhari administration be the sole responsibility of the centre without consultations with and the inputs from the states?
The court replied in the negative. Said Justice Agim: “States have a right to be consulted by (the) president before the directive to the CBN, as constituents of the federation. The position of the president as agent of the federation imposed a duty of consultation on him. Not to do so makes him a dictator. In other countries,” he went on, “decisions to change currencies follow due process and in accordance with democratic dictates, not after a side talk with their central bank chiefs.”

I can only add that the long years of military rule necessarily left their detritus like a swirling confetto of brimstone on the federal republic. Bureaucracy represented by due process was considered too slow during the military regime and so decisions were taken and executed “with immediate effect.” I can still hear the faint ring of it among our political leaders.

The phrase became the signature of empty and misguided military radicalism. It lingers and continues to rape the system and reduce governance to a hollow ritual that bends to the big man’s whims and caprices at the centre and the states. Without following due process, good governance becomes an inconvenient ideal to which our political leaders are loathe to aspire. We live under a stifling military federalism reflected in the uniformity that is anathema to federalism and yet believe that we are operating a federal system of government. Our unwillingness to address issues and problems that hobble us is responsible for the current confusion at the three tiers of government. Nigeria jaga-jaga? Right.

The court declared as invalid “The directive given by the president through a press release by the CBN” and said that “no reasonable notice was given the CBN under section 20 of the CBN Act,” and therefore it was invalid. The withdrawal limit imposed by the apex bank, according to the apex court “is an infringement of people’s rights.” An anti-people policy is a hostile policy.

If the policy did not follow due process and offends the CBN Act under reference above, then it is illegal and ought to be withdrawn by the president with due apologies to fellow Nigerians. Since in our tradition the president cannot be wrong, he cannot stoop so low as to admit his fault just because the apex court has chided him and reduced his major policy in the twilight zone of his administration to a product of arrested dictatorship. 

But it leaves us with circling back to what happens to a policy that defies the rule of law in conception and implementation. The court invalidated the pillars of the policy but refused to deliver the killer punch: declare it as not only invalid on the whole but illegal. Laws and the rule of law may inconvenient but in their imposed inconvenience a society manages its affairs, including the protection of the rights of individuals in the larger context of societal rights and interests. 

A major policy conceived in secrecy but implemented inevitably publicly faces some fundamental problems that may weaken and destroy it. To begin with, it robs itself of the benefits of public views that may help to make it a better policy than even originally conceived. A good public policy taps from individuals and groups. More importantly, a major public policy, like the constitution, reserves the right to be reviewed once it is tested in the public and some aspects of it are found to be wanting. No public policy, no matter how well meant it might be, is cast in stone. Its review in the course of implementation benefits from public reactions to it. Buhari and Emefiele believe, quite wrongly, that their policy is cast in stone and must be rammed down our throats. The apex court disagrees.

Democracy is a government of dialogues between the leaders and the led. If a dialogue is stifled in the decision-making process, democracy is spelt authoritarianism.

Every public policy is in danger of being ruined by the law of unintended consequences resulting from the manner of its conception and implementation. A monetary policy has inherent risk factors that should not be ignored in its implementation. This appears not to have been the case here. It should have been obvious to Buhari and Emefiele that depriving the people of their right to access their legitimate money in the banks was clearly anti-people. The risk factors here were in plain view. 

The apex court also touched on the growing tendency by the president and the president’s men to treat court judgements that go against the government with contempt. This has clear implications for the rule of law.

The judgment under reference was similarly treated by the president and his men. So were many judgements similarly treated by President Obasanjo. Justice Muhammadu Uwais, the then Chief Justice of Nigeria, was so frustrated about this that he decried it thus: “A government that does not obey the courts is a bad government.” 

Justice Agim re-echoed that in these words: “Our rule of law becomes illusory if a president refuses to obey the court.” Treating court judgements with contempt amounts to a calculated assault on the judiciary. The weakening of the judiciary through intimidation and its corruption heads the judiciary towards the Golgotha. Our political leaders must pull back from that precipice.