Information on spending of recovered loot: FG must obey the law ---Court
(Nigeria) A Federal High Court sitting in Lagos has insisted on
enforcement of its judgment, ordering the government of President Muhammadu
Buhari to publish widely the spending of recovered stolen funds since return of
democracy in 1999.
The judgment by the trial judge, Justice Mohammed Idris
reads in part: “Transparency in the decision making process and access to
information upon which decisions have been made can enhance accountability.”
Meanwhile, applicant in the suit, Socio-Economic Rights and
Accountability Project, SERAP, has forwarded a copy of the judgment alongside a
petition to Mr. Abubakar Malami, SAN, Attorney-General of the Federation and
Minister of Justice.
The 69-page judgment noted that “Obedience to the rule of
law by all citizens but more particularly those who publicly took oath of
office to protect and preserve the Constitution is a desideratum to good
governance and respect for the rule of law. In a constitutional democracy like
ours, this is meant to be the norm.”
The court said, “I am
of the view that on receipt of SERAP request, the government had the duty to
respond to same. If it does hold the information it must supply it within seven
days from receipt of the request. Where a decision to withhold information is
taken, the government/relevant authorities must inform the plaintiff of its
reason. In respect of the SERAP reliefs on recovered stolen funds since return
of democracy in 1999, the government had kept mute. Let me say that they have
no such power under the law.
“There is public interest in public authorities and
high-profile individuals being accountable for the quality of their decision
making. Ensuring that decisions have been made on the basis of quality legal
advice is part of accountability.”
“The judiciary has no choice but to enforce compliance with
the Freedom of Information Act. There is no doubt that the FOI Act is intended
to act as a catalyst for change in the way public authorities approach and
manage public resources and records. The judiciary cannot shirk its sacred
responsibility to the nation to maintain the rule of law.”
“I am of the view and do hold that the action should and
does succeed in whole. Documents relating to the receipt or expenditure on
recovered stolen funds since return of democracy in 1999 constitute part of the
information which a public institution and authority is obligated to publish,
disseminate and make available to members of the public. The government has no
legally justifiable reason for refusing to provide SERAP with the information
requested, and therefore, this Court ought to compel the government to comply
with the Freedom of Information Act, as the government is not above the law.
“Examples of cases where there may be a public interest in
the disclosure of confidential information include: 1. Information revealing
misconduct/mismanagement of public funds. 2. Information which shows that a
particular contract is bad value for money. 3. Where the information would
correct untrue statements or misleading acts on the part of public authorities
or high-profile individuals.”
“Freedom of Information Act 2011 is meant to enhance and
promote democracy, transparency, justice and development. It is designed to
change how government works, because we have all resolved that it will no
longer be business as usual. What is done officially must be done in accordance
with the law. Although the Freedom of Information Act requires no explicit
public interest test, an assessment of public interest must still be made.
Therefore, all public institutions and authorities must ensure that they
prepare themselves for the effective implementation of the Freedom of Information
Act.
“Disclosure of the information will not constitute an
actionable breach of confidence if there is a public interest in disclosure
which outweighs the public interest in keeping the information confidential.
There is a public interest in ensuring public scrutiny of public
authorities. If the exemption under the
Freedom of Information Act is wrongly applied and information is incorrectly
withheld, a public authority may face sanctions under the Act for not complying
with the duty to provide information.”
SERAP in its letter to Mr Malami, asked him to “You use your
good offices and leadership to ensure and facilitate full, effective and timely
enforcement and implementation of the judgment by Justice Mohammed Idris of the
Federal High Court, Lagos. The judgment ordered the administration of President
Buhari to publish up-to-date information on the spending of recovered stolen
funds since the return of civilian rule in 1999.”
SERAP also said that, “Given the relative newness of the
Buhari government, the effective enforcement and implementation of the judgment
will invariably involve setting up a mechanism by the government to invite the
leadership and high-ranking officials of the governments of former President
Olusegun Obasanjo, former President Umaru Musa Yar'Adua, and former President
Goodluck Jonathan to explain, clarify and provide evidence on the amounts of
stolen funds recovered by their respective governments (from abroad and within
Nigeria), and the projects (including their locations) on which the funds were
spent.
“SERAP therefore, believes that the swift enforcement and
implementation of this landmark judgment by the government of President Buhari
will be litmus test for the President’s oft-repeated commitments to
transparency, accountability and the fight against corruption, and for the
effectiveness of the Freedom of Information Act in general,” the organisation
also said.
The organisation said that, “The enforcement and
implementation of the judgment should not be delayed as to do this is to
continue to frustrate the victims of corruption in the country since the return
of democracy in 1999, and will threaten to undermine the authority of our
judicial system.
“SERAP trusts that you will see compliance with this
judgment as a central aspect of the rule of law; an essential stepping stone to
constructing a basic institutional framework for legality, constitutionality,
the rule of law practice and culture in the country. We therefore look forward
to your positive response and action on the judgment,” the organisation
concluded.
It will be recalled that the court in suit no: FHC/IKJ/CS/248/2011
entered judgment in favour of SERAP against the Federal Government as follows:
*A declaration is hereby made that the failure and/or
refusal of the Respondents to individually and/or collectively disclose
detailed information about the spending of recovered stolen public funds since
the return of civil rule in 1999, and to publish widely such information,
including on a dedicated website, amounts to a breach of the fundamental
principles of transparency and accountability and violates Articles 9, 21 and
22 of the African Charter on Human and Peoples’ Rights (Ratification and
Enforcement) Act.
*A declaration is hereby made that by virtue of the
provisions of Section 4 (a) of the Freedom of Information Act 2011, the 1st
Defendant/Respondent is under a binding legal obligation to provide the
Plaintiff/Applicant with up to date information on the spending of recovered
stolen funds, including: (a) Detailed information on the total amount of
recovered stolen public assets that have so far been recovered by Nigeria; (b) The amount that has been spent from the
recovered stolen public assets and the objects of such spending; (c) Details of projects on which recovered stolen
public assets were spent.
*An order of mandamus is made directing and or compelling
the Defendants/Respondents to provide the Plaintiff/Applicant with up to date
information on recovered stolen funds since the return of civilian rule in
1999, including: (a) Detailed information on the total amount of
recovered stolen public assets that have so far been recovered by Nigeria; (b) The amount that has been spent from the
recovered stolen public assets and the objects of such spending and (c) Details of projects on which recovered stolen
public assets were spent.
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