Following recent disclosure of funds recovered from some high-ranking
public officials and private individuals, Socio-Economic Rights and
Accountability Project, (SERAP) has sent a Freedom of Information request
to the Minister of Information, Alhaji Lai Muhammed asking him to use his
good offices to “with 14 days of the receipt and/or publication of this
request provide information about the names of high ranking public
officials from whom public funds were recovered and the circumstances
under which funds were recovered, as well as the exact amount of funds
recovered from each public official.
“If we have not heard from you by then, the Registered Trustees of SERAP
shall take all appropriate legal actions under the Freedom of Information
Act to compel you to comply with our request.”
The FOI request dated 8 June 2016 and signed by SERAP executive director
Adetokunbo Mumuni was copied to the Attorney General of the Federation and
Minister of Justice Mr Abubakar Malami, SAN. The request reads in part:
“While we believe that suspects generally are entitled to be presumed
innocent until proven guilty by a court of competent jurisdiction, SERAP
opposes blanket non-disclosure of names of high-ranking public officials
from whom some of the funds were recovered.”
“SERAP insists that the public interest to know is greater than any other
legitimate interest that the government might wish to protect. The
Nigerian government has an obligation to balance whether the risk of harm
to the legitimate aim (that is secrecy of ongoing corruption investigation
and presumption of innocence) from disclosure of the names of public
officials is greater than the public interest in accessing the
information.”
“According to public interest test, even if the government demonstrates
that the publication of the names of public officials would substantially
harm a legitimate interest, it is nevertheless obliged to disclose the
requested information if, as it is the case here, the public interest in
disclosure is sufficient enough to overweigh the harm.”
“SERAP believes that the recoveries, specifically from high-ranking public
officials (and not private individuals), are matters of public interest.
Publishing the names of those public officials will provide insights
relevant to the public debate on the ongoing efforts to prevent and combat
a culture of grand corruption and the longstanding impunity of
perpetrators in the country.”
“The gravity of the crime of grand corruption, the devastating effects on
the socially and economically vulnerable sectors of the population, and
the fact that recovery of huge funds from high-ranking public officials
entrusted with the public treasury raise a prima-facie case and therefore
amount to exceptional circumstances that justify naming those high-ranking
officials in the public interest.”
“SERAP also argues that Nigerians are entitled to the right to truth
derived from the obligations of the government to carry out an
investigation of violations of human rights and crime of corruption
committed within its jurisdiction; to identify, prosecute and punish those
responsible; and to ensure that victims have the simple and prompt
recourse for protection against violation of fundamental rights, as well
as to ensure transparency in public administration.”
“SERAP believes that the right to truth allows Nigerians to gain access to
information essential to the fight against corruption and in turn
development of democratic institutions as well as provides a form of
reparation to victims of grand corruption in the country.”
“Publishing the names of public officials involved could go a long way in
preventing senior public officials from turning the public treasury into a
private cashbox. SERAP argues that the public interest in publishing the
names of the high-ranking government officials from whom funds were
received outweighs any considerations to withhold the information, as
there would be no prejudice against those whose names are published as
long as the information is appropriately framed and truthful.”
“There is a general public interest in promoting transparency,
accountability, public understanding and involvement in the democratic
process. While the government in some limited cases can legitimately place
restrictions on the public’s right to access certain information, attempts
of the Nigerian authorities to justify the total closure of information
related to the names of public officials from whom funds were recovered on
the basis of “ongoing criminal investigation” and “presumption of
innocence goes far beyond the limitations allowed under international law,
and would promote secret recoveries.”
“The information being requested is not related to detailed investigatory
activities of anticorruption agencies regarding the recoveries so far
made. Similarly, the mere fact that the information being requested is
related to ongoing investigation does not necessarily mean that the
information could not be disclosed. In addition, governmental agency has
the obligation to prove that the disclosure of the names of public
officials would disrupt, impede, or otherwise harm the ongoing or pending
investigations or presumption of innocence.”
“The best practices in international law include to the Recommendation
adopted by the Committee of Ministers of the Council of Europe which
requires states to ensure access to government-held information even if
the disclose would harm one of the legitimate interests enumerated in the
Recommendation, if there is an overriding public interest in having the
requested information. The Principle 4 (2) provides: “Access to a document
may be refused if the disclosure of the information contained in the
official document would or would be likely to harm any of the interests
mentioned in paragraph 1, unless there is an overriding public interest in
disclosure.”
“The Recommendation list includes the prevention, investigation and
prosecution of criminal activities” as one of legitimate interests, thus
providing that overriding public interest is a trump over any reason not
to name the public officials concerned.”
“The principle that requested information should be disclosed if there is
an overriding public interest in having access to information, has been
reaffirmed in the Joint Declaration adopted by the UN, OSCE and OAS
special mandates on freedom of expression.”
“SERAP argues that a confession or prima facie evidence of grand
corruption and the staggering effects of grand corruption fall within the
Nigerians’ right to know as guaranteed under the African Charter on Human
and Peoples’ Rights and the Freedom of Information Act.”
“SERAP argues that in this case Nigerians are entitled to the right to
receive information without any interference or distortion, and the
enjoyment of this right should be based on the principle of maximum
disclosure, and a presumption that all information is accessible subject
only to a narrow system of exceptions.”
“In general, Nigerian laws and international law recognize the legitimate
interest of society in having the names of the public officials published;
in knowing the truth about who exactly returned funds and under what
circumstances. SERAP argues that the enjoyment of the right to truth in
this case is essential to the efforts to end corruption and impunity of
perpetrators.”
“SERAP uses ‘public interest’ here not as something to satisfy the
curiosity of Nigerians but the interest of society as a whole in events
related to the exercise of self-government in a democratic state. This
covers all matters of public concern and includes exposing misuse of
public funds or other forms of corruption by public officials and debates
on preventing and combating corruption in general. Therefore, the notion
‘public interest’ covers all the legitimate interests of the public,
satisfaction of which is the essential prerequisite for exercising
effective democratic control over governmental institutions.”
“Details of the recoveries, published by the Federal Ministry of
Information, showed that the Nigerian government successfully retrieved
total cash amount N78,325,354,631.82, $185,119,584.61, £3,508,355.46 and
€11, 250 between May 29, 2015 and May 25, 2016. Also released were
recoveries under interim forfeiture, which were a combination of cash and
assets, during the same period: N126,563,481,095.43, $9,090,243,920.15,
£2,484,447.55 and €303,399.17. Anticipated repatriation from foreign
countries totalled: $321,316,726.1, £6,900,000 and €11,826.11. The
ministry also announced that 239 non-cash recoveries were made during the
one-year period. The non-cash recoveries are – farmlands, plots of land,
uncompleted buildings, completed buildings, vehicles and maritime
vessels.”
SIGNED
Adetokunbo Mumuni
SERAP Executive Director
8/06/2016
www.serap-nigeria.org
Lagos, Nigeria
Twitter: @SERAPNigeria