By Victor Agi
In the week that Nigerians await the outcome of its presidential election, the dominant news in the U.S., the nation we copied the presidential system of electoral democracy, was on its Supreme Court, as the court convened to hear cases that challenged President Joe Biden’s $400 billion worth student loan forgiveness plan. The court was to determine if the administration’s proposal to unilaterally forgo student loans without congressional approval is within its powers, and if such powers can indeed be derived from the provision of the Higher Education Relief Opportunities For Students (HEROES) Act being relied upon, on the one hand, and if such waiver will be fair to “a small business owner who did not have a college degree but instead took out a loan to start their business,” for instance, who may not see any relief, a point made by Chief Justice John Roberts during the hearing. The outcome of the cases brought before the courts is expected to be out before the end of June.
The above is one of many cases that exemplifies how powers are properly delineated to check abuse and usurpation by one arm of the government as contained in the writings of the French political philosopher Charles Louis de Secondat, Baron Montesquieu (1748; The Spirit of Laws). Simply put, the principle of separation of powers spells out the mutual relations among the three organs of the government, thereby empowering each organ to function without intrusion by the other in a democratic society.
While Nigeria continues to celebrate the successful transmission of power from one democratic government to another since we embraced our current constitutional democracy in 1999, and indeed the progress we have made with our elections, especially with regard to legal framework, the same cannot be categorically said of our institutions and officials empowered by law to ensure the law is supreme. This is especially true because laws, no matter how well thought out, require upright and democratically minded individuals who understand and submit to the principle of the “rule of law” to implement (executive role) and interpret (judicial role). This appears to be the major shortcoming in our democratic experience, a situation where those vested with executive powers flagrantly disregard procedures for seemingly selfish purposes, often time under the guise of national interest/security.
A case in point is the current issue of the naira redesign policy brought and determined by the supreme court last week. It was a matter that borders on the constitutionality or otherwise of the CBN’s policy and whether the supreme court has the jurisdiction to entertain the case in the first instance. In the run-up to the final judgment which was delivered on the 3rd of March, 2023, Nigerians saw how the CBN and the President varied and issued counter directives to the Supreme Court’s initial interim order which compelled the CBN and commercial banks to abort the 10th of February deadline, pending the determination of the case filed by the concerned state governments on behalf of its citizens. Regardless of its claims that the policy was in the interest of Nigerians, this experience typifies a government with disregard for court rulings and democratic processes. Among others, the Supreme court held that the policy of the Federal Government is inconsistent with the CBN Act, as the President did not consult the National Council of States and the National Economic Council before implementing the naira redesign policy; adding that “no reasonable notice was given as required by Section 20(3) of the CBN Act. The directive and implementation of the policy, is therefore invalid”. The court also alluded to the unconstitutional use of executive powers by the President, which it described as a failure of the rule of law, and therefore posited that the defendants ought not be heard.
Although the above case in reference has political undertones, the antecedent, especially with this administration has shown disregard for unfavourable court orders. This is exactly why after this judgment was delivered on the 3rd of March, the administration has so far maintained a status quo contrary to the position of the court. This is also despite the fact that ordinary Nigerians continue to face the hardship that has resulted from the cash crunch as commercial banks have reportedly not received the old notes from the apex bank for circulation as directed by the court. Also, the President and CBN Governor have not responded to the court ruling to demonstrate willingness to obey and assuage the suffering masses.
Democracy as a system of government thrives when there is the rule of law, in which case constitutional interpretations become supreme and respected above everything and everyone else, including the President. In our democratic journey, we must be wary of willful undermining of the powers of the courts to interpret the laws. A situation where the highest office in the land disregards unfavourable rulings by the highest court in the land is the highest form of abuse of power. All things being equal, judicial powers are used to defend and enforce the people’s rights; hence, disobedience to court orders loosely translates to trampling on human rights. In the case in reference, apart from paying deaf ears to the hardship in the land, the President’s disregard and continuous refusal to obey court rulings in a case that has been determined to be inconsistent with the constitution is simply undemocratic, to put it lightly.
To save face and in the interest of the rule of law, the President should swiftly respond to the court ruling and direct the CBN to equally release the old naira denomination to commercial banks to cushion the current cash crunch. A precedent of perpetual disregard for court rulings is unprecedented and should be condemned by all lovers of democracy, as it threatens public confidence in the judiciary to deliver justice, and as the last hope of the common man.
Victor Agi is the Head, Public Relations at the Center for Fiscal Transparency and Integrity Watch