Wednesday, 2 March 2016

SERAP win law suit against Government, Court orders FG to account for recovered loot since 1999.

A Federal High Court sitting in Lagos has, in a landmark judgment, ordered the Federal Government to disclose the total amount of money recovered from stolen public assets since 1999 by past and present governments till date, as well as details of the spending of such funds.

The court noted that successive governments, since the return of democracy in 1999, “breached the fundamental principles of transparency and accountability for failing to disclose details of spending of recovered stolen public funds, including on a dedicated website.”

The court subsequently ordered the government of President Muhammadu Buhari to “ensure that his government and that of the governments of former Presidents Olusegun Obasanjo, Umaru Yar’Adua, and President Goodluck Jonathan account fully for all recovered loot.” 

Trial judge, Justice Mohammed Idris, in his judgment in a Freedom of Information suit by Socio-Economic Rights and Accountability Project, SERAP, on Friday, which copy Vanguard obtained, yesterday, also ordered the Federal Government to disclose information on the total amount of recovered stolen public assets by each government; the amount of recovered stolen public assets spent by each government as well as the objects of such spending and the projects on which such funds were spent.” 

The judge dismissed all objections raised by the Federal Government and upheld SERAP’s arguments. The court’s declaration Consequently, the court 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. Reacting to the judgment, SERAP’s Deputy Executive Director, Mr Olukayode Majekodunmi, said: “This judgment confirms the persistent failure of successive governments starting from the Obasanjo government, to respect Nigerians’ rights to a corruption-free society and to uphold constitutional and international commitments on transparency and accountability. 

“The judgment is an important step towards reversing a culture of secrecy and corruption that has meant that high-ranking government officials continue to look after themselves at the expense of the well-being of majority of Nigerians, and development of the country. “This is a crucial precedent that vindicates the right to a transparent and accountable government and affirms the human rights of the Nigerian people to live a life free from want and fear. We will do everything within our power to secure the full and effective enforcement of this judgment.”

 During the trial of the matter, the Federal Government, through its counsel, Sheba Olugbenga, had in preliminary objection, argued that SERAP lacked the locus standi to institute the action, adding that the action was statute barred and that SERAP’s affidavit evidence offended the provisions of the Evidence Act. On May, 2012 the Federal Government filed additional written address in support of its preliminary objection, arguing on the retroactive nature of SERAP’s request, contending that the Freedom of Information Act, having been enacted in 2011, does not apply to spending by governments since 1999. In response, SERAP argued that the FOI Act was a special specie of legislation to liberalize and expand access to information for all Nigerians, adding that the FOI Act did not impose any requirement of locus standi on applicants and that the only relevant limitation period in the case was that which required filing of suit within 30 days if information is not given. It’s right of public to information — 

SERAP further argued that the right which the FOI Act sought to protect was the right of the public to have access to information which is in custody of a public official or institution, adding that the information sought by SERAP was not caught by the law against retroactivity, but that the right in question was expropriatory in nature, which justified the granting of access to the requested information on the ground of overriding public interest. SERAP also argued in its pleadings that “By virtue of Section 1 (1) of the FOI Act 2011, it is entitled as of right, to request for or gain access to information which is in the custody or possession of any public official, agency or institution. By the provisions of Section 2(7) and 31 of the FOI Act 2011, the Accountant General of the Federation is a public official. By virtue of Section 4 (a) of the FOI Act when a person makes a request for information from a public official, institution or agency, the public official, institution or agency to whom the application is directed is under a binding legal obligation to provide the applicant with the information requested for, except as otherwise provided by the Act, within seven days after the application is received.” 

It had further argued that “the information requested relates to the spending of recovered stolen funds since the return of civilian rule in 1999. By Sections 2(3)(d)(V) & (4) of the FOI Act, a public official is under a binding legal duty to ensure that documents containing information relating to the receipt or expenditure of recovered stolen funds are widely disseminated and made readily available to members of the public through various means.” According to SERAP, “the information requested does not come within the purview of the types of information exempted from disclosure by the provisions of the FOI Act. 

The government has no reason whatsoever to deny SERAP access to the information sought. The requested information, apart from not being exempted from disclosure under the FOI Act, bothers on an issue of national interest, public concern, social justice, good governance, transparency and accountability. “The power or discretion to refuse to give access to information requested for cannot be exercised in vacuum. Such a power or discretion must be provided for by the FOI Act itself. This means, therefore, that a request for information can only be denied or turned down if the information requested is one which is exempted from disclosure under the provisions of the FOI Act.”


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