Court orders Obasanjo, Yar’Adua, Jonathan govts to account for recovered loot

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.”