The Advocate By Onikepo Braithwaite
Many Nigerians are still terribly upset with Mr Godwin Emefiele aka ‘Mefi’, the suspended Governor of the Central Bank of Nigeria (CBN), so much so that some desire that he be ‘burnt at the stake’ by the courts (of course, I’m speaking figuratively and not literally), especially because of the recent disastrous Naira redesign policy that caused Nigerians so much pain and suffering, some of the effects of which we are still feeling up till today. These are not the best of times for Mr Emefiele, whose cup definitely seems to be full and running over with all sorts of allegations. What did Nigerians find more annoying? Some of the Apex Bank’s obnoxious policies under Mr Emefiele’s watch, which plunged Nigeria and Nigerians into even more economic adversity? Allegations of corruption against him, while the people faced untold hardship? Or the allegation that Mefi also wanted to run for the office of President in the 2023 general elections?
Mefi: The Legal Perspective
Whichever one it is, we must put Mr Emefiele’s matter into proper context from the legal point of view, while we wait for the courts to decide whether Mr Emefiele is indeed, worthy of being nailed to the cross! Social media is always quick to make their own judgements about some of these sensational cases, which may not necessarily align with the actual provisions of the law and good judicial precedent; and when some of the decisions then come, the opposite of what has been decided in the court of public opinion, the people cry blue murder! Mefi’s matter has now become ‘sub judice’, since he has been charged to court, so, I’m unable to delve too deeply into it – I must tread as lightly as possible.
Mr Emefiele’s Presidential Aspiration
Let me first dispose of Mr Emefiele’s alleged aspiration to become President of Nigeria (Mefi 2023). I have always reminded us that things which may be regarded as immoral, are not necessarily unlawful (Jurisprudence 101). Stealing is both immoral and unlawful; whereas, a man marrying two sisters may be seen as being immoral, but he has committed no crime. Therefore, even if people found Mr Emefiele’s aspiration to become Nigeria’s President particularly over-ambitious and distasteful (and many did), having satisfied the conditions for qualification for election for office of President set out in Section 131(a), (b) & (d) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution), if he was a member of a political party and sponsored by that party, he would have been free to vie for the office of President, except he fell within any of the disqualifications mentioned in Section 137 of the Constitution (which he did not).
Nigeria has not, at least, particularly not in the last eight years, been a country where ineptitude, nonperformance, underperformance or corruption can bar you from getting into any office. In fact, during the Buhari administration, it seemed as if, the more incompetent you were, the better your chances for progress were; illiteracy and under-qualification were also not an obstacle either. I was shocked to hear that the head of one of our numerous institutions can barely read or write, and never scored more than 20% in any promotion examination! Yet, he now heads the institution. So, Mefi’s underperformance as CBN Governor, wouldn’t have been an obstacle to his aspiration to be President, not in Nigeria of today anyway. Let’s hope that the Tinubu administration, changes this regressive narrative.
And, while it is indisputable that Mr Emefiele left Nigeria and Nigerians worse off than when he met us, one question that keeps coming to mind is, since the private sector where he emerged from plays a different ball game, in that performance is usually the determinant of progress there, Mefi must have been above average to rise to the top of his career, not just as a Banker, but as the Chief Executive of one of the largest banks in Nigeria; so, what went wrong with him as the CBN Governor?
Mr Emefiele is certainly blameworthy for the bad financial situation Nigeria is in, seeing as the buck stops at his table as far as Nigeria’s monetary policy is concerned. This is where allegations of corruption must be thoroughly investigated, to ascertain if there is any link between his decisions which displayed poor judgement, like the nonsensical multiple foreign exchange regime which didn’t start in his time, but was accentuated under him, and the consequences that arose from it under his watch, terrible and chaotic.
Be that as it may, we cannot pretend that we are unaware that Mr Emefiele wasn’t working alone; because despite the fact that Section 1(3) of the Central Bank Act 2007 (CBN Act) provides for the independence of the CBN in the discharge of its functions, we are also very much aware of the fact that there was a considerable amount of interference in CBN’s activities by the Executive, both lawfully and unlawfully. An example of lawful interference is Section 20(3) of the CBN Act, where the approval of the President is required, in order to proceed with any currency redesign policy. Even though the latest currency redesign policy was initiated for the wrong reasons, having very little to do with monetary policy, and more to do with politics and curbing ‘vote buying’, as disastrous as the policy was, it had the stamp of approval of former President, Muhammadu Buhari, which is a precondition for its implementation. It is obvious that there was nothing altruistic about that policy, because if there was, when the hell Nigerians were going through became apparent Government would have halted it, seeing as the welfare of the people is the primary purpose of Government (Section 14(2)(b) of the Constitution). But, instead, Government went ahead and flouted the order of the Supreme Court halting the useless policy. The former AGF, Abubakar Malami, SAN, also threw his role as the protector of the rights of the Nigerian people to the wind, in favour of ‘kow-towing’ to the President. The liability for this catastrophic policy, is therefore joint, between former President Buhari and Mr Emefiele.
As for unlawful intervention in the activities of the CBN, that too went on quite freely. In December 2018, a photograph of Mr Emefiele in a conversation with late Alhaji Samaila Isa Funtua went viral, with the public scornfully commenting that Mefi was ‘kow-towing’ to Alhaji Funtua, while taking instructions from him! I remember making the following comment on this page in August 2019, after President Buhari had issued a directive to the CBN not to give anybody funds to import food into Nigeria, in spite of the decrease in agricultural output and threat of food insecurity, as a result of the violence unleashed on farms and farmers by Herders and their cattle, destroying produce etc:
“I will not waste your time and mine delving into Section 1(3) of the Central Bank of Nigeria Act 2007 (CBN Act), which provides inter alia that, the CBN shall be an independent body in the discharge of its functions, and assert that, if Baba (President Buhari) can simply issue directives to the CBN to follow, ‘it is obvious that the CBN is anything but independent’. We all know that, currently, the concept of ‘separation of powers’ remains a concept, as it is not applicable in Nigeria, because the Executive is in complete control of all the organs of government and their institutions, contrary to Sections 4, 5 and 6 of the Constitution”.
Nevertheless, the fact that there was interference in CBN’s affairs from the Executive and other quarters, certainly does not absolve Mr Emefiele of responsibility. He also had the option of handing in his resignation, had he been dissatisfied with the state of affairs. The issue of the incessant breach of Section 38 of the CBN Act to give ways and means advances to the Federal Government unlawfully, was also a joint effort between Mr Emefiele/CBN and the Executive arm of government. In fact, the Legislature also became an active collaborator in this illegality, when the 9th Senate approved former President Buhari’s request to restructure the N22.72 trillion Ways and Means Advances.
But, can the examples which I have highlighted above, translate to criminality? Maybe, maybe not. A friend of mine who is an Economist, asked me repeatedly if Mr Emefiele couldn’t face criminal prosecution for breaching Section 38 of the CBN Act with the ways and means advances he continually extended to Government unlawfully; and I answered, no, not unless such breach constitutes a criminal offence provided for in law – see Section 36(12) of the Constitution, on the inability to convict an individual of an offence that isn’t defined and penalty prescribed in a written law. See Tafida v FRN (2013) LPELR-21859 (SC) per Kumai Bayang Aka’ahs, JSC; Abidoye v FRN (2013) LPELR-21899(SC) per Nwali Sylvester Ngwuta, JSC.
As a Public Officer, for the purposes of Code of Conduct, by virtue of the Fifth Schedule to the Constitution Part II Paragraph 14, at best we could say that by Mr Emefiele’s conduct he exhibited poor judgement and his personal interest conflicted with that of his duties and responsibilities, and constituted a gross abuse of his powers (see Paragraphs 1 & 9 Fifth Schedule to the Constitution Part 1 Code of Conduct for Public Officers). If Mr Emefiele had been found guilty of contravening the Code by the Code of Conduct Tribunal (CCT), it could have ordered his vacation of office, seizure of property acquired by abuse of office or corruption, or order that he be prosecuted by a court of competent jurisdiction, if any of his actions constituted a criminal offence.
But, it appears that CBN’s warped policies under Mr Emefiele’s watch, may be the least of his problems, as I’m not sure that underperformance or even recklessness in performing his duties constitute any offences known to law, unless of course, there’s corruption, fraud, money laundering and the like involved. I stand to be corrected. See Tafida v FRN (Supra). On the contrary, any allegations of involvement in terrorism, are dire.
Allegations of Terrorism
It is the allegations that have purportedly been levelled against Mr Emefiele by DSS in connection with alleged terrorism financing, that are more troubling. The details of these allegations are however, sketchy, as the public has not been provided with any information in this regard. And, so far, the excerpts of the charge sheet of the case filed against Mr Emefiele at the Federal High Court, Lagos which made the rounds on social media, showed two charges relating to possession of a firearm and ammunition, contrary to Sections 4 & 8 and punishable under Section 27(1)(b)(i) & (ii) of the Firearms Act 2004, that is, imprisonment not exceeding a term of five years. However, only the first page of the charge sheet was circulated as at last Saturday, meaning that there may be other charges which we have not seen. What we have seen so far, has nothing to do with any charges of terrorism.
Nevertheless, Section 1(1) of the Terrorism (Prevention) Act 2011 (as amended in 2013)(TPA) prohibits all acts of terrorism and financing of terrorism, and anybody who engages in terrorism or attempts or threatens any act of same, finances terrorism, is an accomplice, assists etc, is liable upon conviction for any of the terrorism related offences to a maximum of death sentence. In short, terrorism and anything related to it, is an extremely grave offence.
Section 162 of the Administration of Criminal Justice Act (ACJA) provides inter alia that, a Defendant charged with an offence that is punishable with imprisonment that exceeds three years (like Mr Emefiele), shall be released on bail, except in certain circumstances, for instance, if there is ground to believe that the Defendant will jump bail, or interfere with the investigation or witnesses (among other exceptions). See Omodara v State 2004 1 NWLR Part 853 page 80 at 89-90; Anaekwe v COP 1996 3 NWLR Part 436 Page 332. In Adams v Attorney-General of the Federation 2007 All FWLR Part 355 Page 429 at 445, the Court of Appeal held inter alia, that the onus is on the prosecution to show that the Applicant for bail is one that should be refused bail. In Southern Nigeria, in exceptional circumstances, even murder is bailable offence, though such bail must be granted by a High Court Judge. This means that Mr Emefiele is well within his rights to have applied for bail, and if he met the criteria, be granted same, unless the prosecution could prove otherwise.
No one is saying that Mr Emefiele is innocent or guilty of the allegations levelled against him. This is for the court to decide. What is crucial is that, no matter what Mr Emefiele is accused of doing, the rule of law must prevail. This is the only way to show the world, that Nigeria is on a new and positive trajectory, building a lawful and orderly society.