Law & Human Rights

March 9, 2023

Currency swap policy: S’Court should’ve ordered FG to pay damages to each state or person — Dr Ajulo

Implementing judges’ salary increase’ll be tricky, tedious — Sen Edoma, SAN

•Shittu explain mathematics of determining presidential poll winner

By Ise-Oluwa Ige

Lately, the twin issues of implementation of currency redesign and swap policy of the Central Bank of Nigeria which brought about untold hardship on Nigerians few weeks to the conduct of the 2023 presidential election and the controversy surrounding the intendment of the drafters of the 1999 Constitution of the Federal Republic of Nigeria,  regarding whether or not a presidential candidate must  score 25 per cent votes cast in 2/3 of the 36 states of the Federation and the Federal Capital Territory, FCT, before such candidate can be declared president-elect, have severally hugged newspapers’ headlines for obvious reasons. Stakeholders, including scholars, politicians, language experts and lawyers, have subjected the issues to heated discussion. Although the Supreme Court had, on February 3, 2023, invalidated the CBN currency swap policy, no definite pronouncement is yet to be issued on the correct interpretation of section 134 (2) (b) and 299 (1) of the 1999 Constitution regarding the status of FCT in the Mathematical calculation of  2/3  of states in the Federation for the purpose of determining a winner in presidential election in the country. Aftermath of the Supreme Court judgment on the CBN cashless policy and the recent declaration by the Independent National Electoral Commission, INEC, of Bola Tinubu as the  President-Elect,  Vanguard Law and Human Rights, in this Edition, sought  the views of Adjunct Lecturer at Adekunle Ajasin University, Akungba-Akoko, Dr. Kayode Ajulo and and Wahab Shittu, SAN, currently a Law lecturer in LASU and EFCC prosecutor on issues arising therefrom, among other topical matters. 

Excerpts:

The currency redesign and swap policy of the CBN has been invalidated by the Supreme Court with hard words for the administration of President Muhammadu Buhari but the old notes are still not available while the CBN keeps mute. How should the S’Court decision on this issue be fully implemented?

Ajulo: The unanimous Judgment of the full panel of the Supreme Court on the currency redesign and swap policy of the CBN to me, fits the coined words by Williams Shakespeare in The Merchant of Venice, which alludes to the Biblical character, Daniel, who was well known for having excellent faculties of judgment.  Our Supreme Court in the matter under reference has been a Daniel come to judgment and I think we must celebrate and salute their courage, resolution and dedication to national call. 

Their decision is unimpeachable, as it defines the Supreme Court in its exalted peculiar position as a law interpreter, “lawmaker” and policymaker. The Supreme Court makes and shapes policy when it is called upon to interpret certain provisions of the Constitution. This is because the route which a court takes when interpreting the provisions of our sacred and organic constitution is different from the route it takes when it is interpreting a mere statute. The Supreme Court explained this role in the case of Marwa v Nyako (2012) 6 NWLR (Part 1296) 199 when it held thus: “When interpreting the Constitution, the court must bear in mind that it is dealing with an instrument which controls and regulates the powers and functions of government, controls the rights and obligations of the citizen and controls the peace and order of the society upon which the Constitution is supposed to operate.”

Without doubt, the facts of the matter fortified Supreme Court’s  jurisdiction and they rightly assumed same. From the first sentences of the judgment, it is clear that the CBN acted under the directives of the President and the President is the right party before the court and not the president’s agent, the CBN. 

As noted in your question, the words used for the President, though may seem hard or harsh, but they’re certainly appropriate for such an errant party. Whereas, I would have loved to see the court ordering for a certain amount of fines to be paid to every Nigerian for the hardship experienced due to such reckless,  thoughtless and unconstitutional directives of the President. 

Finally, we need to be sincere, since the decision patently passes the characteristic of a good judgment, its decision would be implemented by default and without much ado.” 

Wahab Shittu: “First, the decision of the Supreme Court is laudable given the present economic hardship occasioned by the naira redesign policy.

The decision of the Supreme Court should be respected and implemented accordingly. Regarding the availability of the old notes, it is the responsibility of the CBN to ensure that an adequate supply of the old notes is made available to the public. The CBN may need to take steps to ensure that the public has access to the old notes while maintaining the integrity and security of the currency.

It is important for all stakeholders, including the CBN, the commercial banks and the government, to respect the decision of the Supreme Court and work together to implement it in a timely and efficient manner. Actions should be taken in accordance with the law and with the best interests of the Nigerian people in mind.”

The February 25, presidential election has come and gone but what remains controversial apart from the election results, is the arguable part requirement of securing 25 per cent of votes cast in FCT before a candidate who has satisfied other criteria can be declared winner. What is your view on this as a lawyer?

Ajulo: The provisions of Section 134(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), particularly sub-paragraph (b) thereof have generated so much fuss and controversy in the past few days, especially after the conclusion and announcement of the winner of the recently concluded presidential election.

Basically, there are two opposing sides in the arguments the above section has spawned: those who argue that for a candidate to be declared winner, he must get 25% of the votes cast in FCT (asides meeting other Constitutional criteria) and those who contend that a candidate need not poll 25% of the votes cast in FCT to be declared winner, so far as he meets other Constitutional requirements. For the sake of clarity, Section 134(2) provides that:

(2) A candidate for an election to the office of the President shall be deemed to have been duly elected where, there being more than two candidates for the election- 

(a) he has the highest number of votes cast at the election; and 

(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.

Even though the Federal Capital Territory, Abuja is not a State properly so called, the Constitution has clothed it with the toga of a State. In other words, the FCT is treated like a State, and all the powers of a governor in a State is vested in the minister of the FCT. While the Houses of Assembly of the 36 States of the Federation legislate for each State respectively, the National Assembly makes laws for the FCT. Furthermore, while the States have their respective LGAs, the FCT has Area Councils. 

Pursuant to the above, Section 299 of the Constitution expressly provides that the provisions of the Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation. Section 299 of the Constitution has received the judicial imprimatur of the full panel of the Supreme Court in FAWEHINMI & ORS v. BABANGIDA & ORS (2003) LPELR-1255 (SC). Hence, each time the Draftsman intends to refer to the 36 States and FCT in the Constitution, it says “all the States in the Federation and the Federal Capital Territory, Abuja (FCT)”, bearing in mind that the FCT has also been clothed with the toga of a State.

Having made the above clarification,  the “and” as used by the draftsman between “all the States of the Federation” and “the Federal Capital Territory, Abuja” in sub-paragraph (b) of Section 134(2) of the Constitution cannot be interpreted to mean that what applies to other States is inapplicable to FCT. Rather, it means that the FCT is on the same pedestal as the States of the Federation, even though it’s not a State properly so called.

So, the intention of the draftsman as regards Section 134(2)(b) of the Constitution is that the candidate, in addition to having the highest number of votes cast at the election, must also poll not less than one quarter (25%) of the votes cast at the election in each of at least two-thirds of all the States in the Federation (36 States) and the FCT (a State kind of), thereby making it 25% of votes cast in at least 2/3 of 37 States. 2/3 of 37 is 24.6.

Drawing from the reasoning of the erudite jurist, Otutu Andrews Obaseki, JSC (of blessed memory), in the landmark decision of the full panel of the Supreme Court in AWOLOWO v. SHAGARI & ORS (1979) LPELR-653(SC), there’s nothing like 24.6 States, for a State is a geographical setting incapable of being divided.

Borrowing a leaf from the revered jurist, the construction that two-thirds of 37 States in the Federation (FCT inclusive) is 24.6 States may be correct in the abstract but in relation to the Constitution, it is impracticable. Where there are two possible meanings conveyed by the words of a statute or the Constitution, it is the most reasonable one that should be adopted. Where the other meaning leads to absurdity or evinces internal contradiction, that meaning should be dropped for the first as the legislature never intends to be absurd or contradictory.

The word ‘each’ in the sub-section (2)(b) of Section 134 qualifies a whole State and not a fraction of a State and to interpret it otherwise is to overlook the disharmony between the word “each” and the fraction “two thirds”. Two-thirds of thirty-seven (37), to avoid any disharmony, gives 25.

As a way of covering the base, the second school of thought contend that for a candidate to be declared winner, he must score 25% in the FCT (asides meeting other Constitutional requirements). If one agrees with this view, then it logically follows that if a candidate wins the entire 36 states of the Federation and polls the majority number of votes cast, if he fails to get 25% in FCT, then he cannot be declared winner. This cannot be the intendment of the Draftsmen, as the FCT cannot hold the entire nation to ransom.

So, once a candidate severally polls at least 25% of votes cast in at least 25 states, whether inclusive of FCT or not, he’s won the election so long as he also has the majority of the votes cast all over the Federation.

Wahab Shittu: “My simple view is that a candidate can be declared winner of a presidential election in Nigeria without necessarily scoring up to 25 per cent of votes cast in the Federal Capital Territory. Section 299(1) of the Constitution provides that the provisions of the Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation. It means that, the FCT is seen by the constitution as the 37th State in Nigeria.

The meaning of “not less than one-quarter of the votes cast at the election in each of at least two-thirds of All The States And the FCT” in section 134 of the constitution is 25 States or 24 States plus the FCT. Winning 25% of the votes cast in the FCT by a candidate, is not compulsory.