The Federal High Court sitting in Lagos, in a landmark judgment, has held that successive governments since the return of democracy in 1999 "breached the fundamental principles of transparency and accountability for failing to disclose details about the spending of recovered stolen public funds, including on a dedicated website."
The court then ordered the government of President Muhammadu Buhari to "ensure that his government, and the governments of former President Olusegun Obasanjo, former President Umaru Musa Yar'Adua, and former President Goodluck Jonathan account fully for all recovered loot."
The judgment was delivered on Friday by Justice M.B. Idris following a Freedom of Information suit no:FHC/IKJ/CS/248/2011 brought by the Socio-Economic Rights and Accountability Project (SERAP).
The details ordered by the court to be disclosed include 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.
Justice Idris dismissed all the objections raised by the Federal Government and upheld SERAP's arguments. Consequently, the court entered judgment in favour of SERAP against the Federal Government as follows:
1. 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
2. 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
3. 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 (c) Details of projects on which recovered stolen public assets were spent
SERAP deputy executive director, Olukayode Majekodunmi, said, "This judgment confirms the persistent failure of successive governments, starting from the Obasanjo government, to respect Nigerians' right 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 right of the Nigerian people to live a life free from want and fear. We are in the process of obtaining a certified copy of the around 60 pages judgment. SERAP will do everything within its power to secure the full and effective enforcement of this judgment.
The Federal Government had through its counsel, Sheba Olugbenga, filed a Notice of Preliminary Objection dated March 26, 2012 on the grounds that SERAP lacked the locus standi to institute the action, that the action was statute barred, and that SERAP's affidavit evidence offended the provisions of the Evidence Act. On May 8, 2012 the Federal Government filed additional written address in support of its preliminary objection, arguing against the retroactive nature of SERAP's request; saying since the Freedom of Information Act was enacted in 2011, citizens cannot be demanding disclosure of government spending 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; that the FOI Act does not impose any requirement of locus standi on applicants; that the only relevant limitation period in the case is that which requires filing of suit within 30 days if information is not given; that the right which the FOI Act seeks to protect is the right of the public to have access to information which is in custody of a public official or institution; and that the information sought by SERAP was not caught by the law against retroactivity, noting that the right in question is expropriatory in nature which justifies 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 7 days after the application is received."
The organization also argued that, "The information requested relates to the spending on 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 the organization, "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 vacuo. 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. In the case at hand, the information requested for by the plaintiff relates strictly to the spending of recovered stolen funds since the return of civilian rule in 1999."
"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 democratic society, this is meant to be a norm; it is an apostasy for government to ignore the provisions of the law and the necessary rules made to regulate matters."