The Federal High Court, Lagos has insisted on enforcement of the judgment
ordering the government of President Muhammadu Buhari to publish widely
the spending of recovered stolen funds since return of democracy in 1999.
The details of the judgment are contained in the certified true copy sent
today by Socio-Economic Rights and Accountability Project (SERAP to Mr.
Abubakar Malami (SAN), Attorney-General of the Federation and Minister of
Justice.
The 69-page judgment dated 24 March 2016 and signed by Honourable 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.”
“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.”
“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 7 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.”
In its letter to Mr Malami said 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 Honourable Justice
Mohammed Idris of the Federal High Court, Lagos. The judgment ordered the
administration of President Muhammadu 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 Muhammadu 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 would 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
(c)
Details of projects on which recovered stolen public assets were spent