Are cryptocurrencies legal tenders within the regulatory purview of the Central Bank of Nigeria (CBN)?
The CBN would seem to have answered this question in their letter dated January 12, 2017 that: “The CBN reiterates that VC such as Bitcoin, Ripples, Monero, Litecoin, Dogecoin, Onecoin, etc and similar products are not legal tenders in Nigeria….”
Since cryptocurrencies are not legal tenders, one wonders where the CBN derives its arrogated powers to regulate cryptocurrency exchanges especially since the provision of section 2 of the CBN Act and section 1 of the Banks and Other Financial Institutions Act clearly define the perimeters of CBN’s powers and functions, yet none contemplates regulation of “exchanges” in the mould of virtual currencies. I stand to be corrected on this interpretation though.
Apparently, since the CBN was in doubt as to the nature of and appropriate regulatory agency for cryptocurrencies, on the 14th day of September, 2020, the Securities and Exchange Commission (SEC) waded in and cleared CBN’s doubts by issuing a statement to the effect that: “The position of the Commission is that virtual crypto assets are securities, unless proven otherwise” https://sec.gov.ng/statement-on-digital-assets-and-their-classification-and-treatment/ Accessed on February 8, 2021.
Thankfully, SEC’s position that cryptocurrencies are securities finds support in a US decision in United States of America v Maskim Zaslavskiy (17 CR 647) where District Judge Raymond Dearie ruled that cryptocurrency is a security and that it would fall under the United State’s Security Exchange Commission’s purview.
Should CBN’s Letter supersede SEC’s statement on cryptocurrencies?
Section 13 of the Investments and Securities Act (ISA) establishes SEC as the apex regulator of securities. Chambers Dictionary defines the word ‘apex’ as “the highest point.” Hence, it is our modest view that CBN should ordinarily steer clear of virtual currencies since it is outside their areas of competence which ought to be in the exclusive preserve of the SEC.
Does the CBN’s letter criminalise dealing in cryptocurrencies or facilitation of payment for cryptocurrency exchanges?
Although CBN’s letter expressly prohibits dealing in cryptocurrency, the source (if any) of such powers is suspect. Assuming they even have such imaginary powers, the courts have ruled that, an offence cannot be created by an administrative circular or letter.
“Administrative circulars or notices have its place in government but cannot create an offence. The apex Court in the case of Maideribe v. FRN (2013) LPELR-21861(SC) on circulars held thus: ” Such circulars are- “a common form of administrative document by which instructions are disseminated; many such circulars are identified by serial numbers and published and many of them contain general statements of policy… they are therefore of great importance to the public giving much guidance about Governmental organization and the exercise of discretionary powers. In themselves they have no legal effect whatsoever, having no statutory authority. Exhibit “PD16z” is not known to law and therefore cannot create an offence because it was not shown to have been issued under an order, Act, Law or statute. In the absence of statutory authority in the said Exhibit “PD16z” or legal notice it cannot be said to have any legal effect.”
As at press time, there is no law that criminalizes dealing in cryptocurrencies in Nigeria to my knowledge as the provisions of section 36(8) and (12) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended) prohibit prosecution for an act which does not constitute an offence at the time of such act. In interpreting section 36(12) of the Nigerian Constitution, the Court of Appeal held in Ibrahim v Nigerian Army (2015) LPELR- 24596(CA) that:
“The ingredients of section 36(12) of the 1999 Federal Constitution as amended (supra) are as follows: “The offence has to be defined in a written law which term refers to:- (i) An Act of the National Assembly;(ii) A Law of a State House of Assembly;(iii) Any subsidiary legislation; or (iv) Instrument under the provisions of a law. The penalty shall also be prescribed in a written law which term refers to:-(i) An Act of the National Assembly;(ii) A Law of a State; or(iii) Any subsidiary legislation; or(iv) Any instrument under the provisions of a law.”