Abuse Of The Naira: Who Can Prosecute? By Ehi Barnabas Henry, MICA

While catching a trip with my good friend Nwabueze Kelvin Obasi, we got into an engaging discussion on the recent trend of the EFCC investigating and prosecuting individuals for spraying the Naira.

Over the years, the spraying of the Naira has become an integral part of Nigerian parties, especially at “owambes” . In fact, no party seems complete without the spectacle of mint notes raining in the air! However, recent enforcement actions by the EFCC have made it necessary to take a closer look at the legality of this cultural practice.

Is Spraying the Naira a Criminal Offence in Nigeria?

Yes. Section 21 of the Central Bank of Nigeria (CBN) Act, 2007 expressly prohibits the spraying, dancing on, writing on, stapling, tearing, or otherwise defacing the Naira. The penalty for this offence is a fine of not less than N50,000 or imprisonment for six months, or both. Thus, spraying the Naira is clearly a criminal offence under Nigerian law.

What then is the Burden of Proof?

Well, like any criminal offence, the prosecution bears the burden of proving the offence beyond reasonable doubt. To secure a conviction under Section 21 of the CBN Act, the prosecution must establish that the alleged violator sprayed or abused actual Naira notes not fake or dummy notes. This may involve identifying the amount and serial numbers of the Naira. The prosecution also needs to establish that the act of spraying was deliberate or reckless, even if done during celebration. There is also a need to provide direct evidence, which may include videos, eyewitness accounts, or confessional statements to tie the violator to the crime.

This burden is significant, especially where the defence challenges the authenticity of the notes or the intent behind the act.

Who Has the Power to Investigate and Prosecute?

This is where it gets interesting.

Section 21 of the CBN Act makes no specific provision assigning prosecutorial or investigatory powers to any agency. However, the Central Bank of Nigeria is the agency statutorily mandated to issue, regulate, and protect the integrity of the Naira (Section 1 and 2 of the CBN Act).

Unfortunately, the CBN does not possess arrest or prosecutorial powers. It can only investigate internally, issue directives, and refer cases to appropriate law enforcement agencies.

So Where Does EFCC Come In?

The Economic and Financial Crimes Commission (EFCC) is empowered under the EFCC Act, 2004 to investigate and prosecute economic and financial crimes. While naira abuse is not strictly an “economic crime,” the EFCC has recently taken an active role in arresting and prosecuting high-profile cases of Naira spraying.

However, there is no express legal provision in the CBN Act that empowers the EFCC to independently enforce Section 21. It is therefore arguable that the EFCC can only act upon referral or directive from the CBN.

It is important to note that other security agencies can also investigate and prosecute.
The Nigeria Police Force (NPF) has general powers under the Police Act and Criminal Code/Penal Code to arrest and prosecute offences, including violations of the CBN Act, especially if directed by the CBN. The Nigeria Security and Civil Defence Corps (NSCDC) also has powers to protect national assets and enforce symbolic regulatory laws. It may participate in enforcing naira abuse laws upon directives.

So What’s the Way Forward?

There’s a pressing need for clarity in enforcement. To avoid jurisdictional overreach or public confusion, a multi-agency framework is ideal. The CBN should lead with public education, issuance of clear guidelines, and referral of violators.
The various law enforcement agencies (EFCC, Police, NSCDC) should act based on CBN directives. CBN must elaborate its directives and policies for the implementation and enforcement of the abuse of the Naira. Most importantly, prosecutions should be coordinated by the Federal Ministry of Justice, particularly through the Director of Public Prosecution (DPP).

While the spraying of the Naira may be culturally established, it remains a criminal offence under Nigerian law. Enforcement, however, must follow due process and statutory limits. A unified and coordinated approach led by the CBN and supported by relevant agencies is crucial to protect the integrity of the Naira and ensure fairness in application of the law.

Ehi Barnabas Henry, MICA
(Henry is a Partner at Maxon and Prime Legal and the Current Assistant General Secretary of the Nigerian Bar Association)