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SERAP’s battle to hold politicians to account

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Of what use is asset declaration if it is shielded from public scrutiny? The Socio-Economic Rights and Accountability Project (SERAP) believes lifting this veil can help check corruption, conflict of interest, collusion and uncover illicit enrichment by politicians and public servants. ROBERT EGBE chronicles its legal battles to hold politicians to account.

Last March, the Code of Conduct Bureau (CCB) introduced an Online Assets Declaration System (OADS) for public servants.

It said this would ease public officers’ rigours during asset declaration and avert corrupt practices in the public sector in accordance with President Muhammadu Buhari’s anti-corruption drive.

If examples from abroad are anything to go by, then the CCB has a point.

Ukraine, for instance, introduced electronic assets declaration in 2016. Two years later, about one million civil servants had submitted their declarations, setting an important milestone for transparency and integrity in the corruption-endemic country.

Assets declaration in Nigeria

The fifth schedule, part 1, section 11(1) (b) of the 1999 Constitution as amended, requires civil and public servants to declare their assets and liabilities and those of their children above 18 years before the CCB, which will archive same.

But the schedule does not require the declarant or the CCB to make such assets public. It also places no duty on either to allow public access to such information. Thus, any public officer who has filled in the form of the Declaration of Assets and Liabilities and has submitted the same to the bureau can argue that having fulfilled the law, he or she is not compelled to make any other public declaration.

CCB

The onus for verifying the declared assets is on the CCB, but stakeholders often note that the CCB seems incapable of satisfying this mandate following the government’s absence of political will as well as funding and manpower shortages.

Arguments for non-disclosure

Proponents of the non-public disclosure of assets often make an interesting case. Nigerian society is largely cultural and the extended family relationship is the norm. They argue, perhaps rightly so, that if your declared assets are considered as substantial, it may attract undue attention from relatives and friends, who may invade your privacy and make unnecessary demands. It could also be a security threat to the declarant.

Case for access to declared assets

Nevertheless, several stakeholders, including foremost anti-graft organisation the Socio-Economic Rights and Accountability Project (SERAP) SERAP, believe the benefits of public access to declared assets far outweigh the demerits and that no modern society, especially a corruption-endemic one like Nigeria, can afford to withhold this right.

SERAP, which is leading the battle to make public access to such declarations available, believes access to declared assets is an important way to expose and check corruption.

It believes open access can help prevent illicit enrichment, not only by making it more difficult to corruptly acquire assets without being held accountable for such actions, but also ultimately changing the mind-sets of public officials so that they are less prone to engage in corrupt practices

It further believes that public access to declarations is a stimulus to workers at the CCB to carry out diligent verification of declarations. SERAP also argues that public disclosure of the private assets of public officials is not inconsistent with the rights to privacy and data protection.

In ‘Citizens’ Guide to asset declaration by public officers in Nigeria’ SERAP noted that while Nigeria has a set of laws and institutions that are pivotal in facilitating assets declaration, “the contentious issues have revolved around non-compliance by the majority of public officials, lack of transparent follow-up and verification of declared assets as well as the persistent reluctance of the custodian of declared assets to publish the records for public scrutiny.

“It has been acknowledged that a number of the assets declaration forms have been left unverified by the regulatory body saddled with the responsibility of custody in Nigeria, thus making the system ineffective.

Many studies back SERAP’s argument that asset declaration that is open to public scrutiny is a way to ensure leaders do not abuse their power.

For instance, the World Bank and the United Nations Office of Drugs and Crimes (UNODC) note in ‘Income and Asset Declarations: Tools and Trade-offs’, that transparent assets disclosure systems can be used to spot problems early in a person’s tenure and used as prima facie evidence in either criminal prosecution or civil asset forfeiture.

SERAP’s battles

SERAP believes that Nigerians deserve to know the specific assets declared by public office-holders so that members of the public can do their independent verification of those assets and hold the public officers to account. To this end, it has called on President Muhammadu Buhari and Vice-President Yemi Osinbajo (SAN) to lead by example by publishing the content of their assets declaration forms.

In a January 3, 2020, Freedom of Information (FoI) request, the advocacy group urged Buhari, Osinbajo, the 36 state governors, and deputy governors to “make public details of their assets, specific properties, and incomes, contained in their asset declaration forms submitted to the CCB since assuming office.”

In the FoI request made by its Deputy Director, Kolawole Oludare, SERAP said it strongly believed that “public disclosure of a summary of assets submitted to the CCB would help to uncover irregularities and trigger formal verification of declarations by the CCB and other anti-corruption agencies.”

It added that public declaration of assets was “entirely consistent with government’s expressed commitment to prevent and combat corruption, provide a safeguard against abuse, and serve as an incentive to public officials to provide exact information when filing and submitting their asset declarations. Non-public disclosure by public officials of their summary of assets undermines the effectiveness and integrity of constitutional obligations to submit asset declarations, especially given that declarations are designed to curb grand corruption, and weakens the public trust in the asset declaration regimes,” SERAP insisted.

But Buhari, Osinbajo, the 36 state governors, and their deputies rebuffed the request. Niger and Lagos states, which acknowledged the receipt of SERAP’s FoI request, declined to release the requested information but contended that “the FoI Act is inapplicable to state governments, their agencies, and officials.”

Reacting during a television interview to SERAP’s request, Buhari’s Special Adviser on Media and Publicity, Mr. Femi Adesina, said there was no legal basis for his principal to make his declared assets public.

“SERAP asking the President to declare publicly, on the basis of what law? The President will do what the law requires of him and what the law requires is that he should declare his asset, which he has done. Declaring publicly is not in our laws; it can only be a voluntary thing,” Adesina said.

The struggle shifted to the Federal High Court in Lagos where SERAP filed a lawsuit marked FHC/ABJ/CS/65/2020, seeking “an order for leave to apply for judicial review and an order of mandamus to direct and/or compel President Buhari, Vice President Osinbajo, 36 state governors and their deputies to make public their summary of assets.”

SERAP went further to seek a mandamus order to compel the CCB “to make available to the public, specific details of asset declarations submitted to it by successive Presidents, Vice-Presidents, Senate Presidents, Speakers of House of Representatives, state governors and their deputies since 1999.”

It argued that asset declaration forms submitted to the CCB by public officers were public documents and public officers could not hide under the fundamental right to privacy to keep their assets secret, having been entrusted with the duty of managing public funds.

The CCB, which contended that no law empowered it to release to the public the assets declaration forms submitted by public officers, vehemently opposed the suit. It said it needed clear legislation by the National Assembly to release to the public details of declared assets by public officers.

The court, in a May 11, 2020 judgment by Justice Muslim Hassan, agreed with the CCB and dismissed SERAP’s suit.

Justice Hassan held: “I agree with the CCB that the duty to make the asset declaration form of public officers available depends on the terms and conditions to be prescribed by the National Assembly. The terms and conditions must be specific and related to asset declaration of public officers and not general legislation such as the Freedom of Information Act.”

Dissatisfied, SERAP proceeded to the Court of Appeal in Lagos to challenge the verdict. In the appeal, SERAP’s Deputy Director, Oludare, described Justice Hassan’s verdict as a miscarriage of justice. He insisted that with the FoI Act, the National Assembly needed not to make any other law specifically empowering the CCB to release to the public contents of assets declaration forms by public officers.

“The learned trial judge did not consider that the National Assembly enacted the Freedom of information in 2011 to grant public access to public documents. The learned trial judge erred in law by holding that the Freedom of Information Act is legislation of general nature in relation to the public access to asset declaration forms of public officers,” SERAP said.

Oludare maintained that “asset declaration forms submitted by public officers are public documents in the custody of the CCB. The CCB is under a legal obligation to provide the information requested by SERAP under the provisions of the Freedom of Information Act, and the African Charter on Human and Peoples’ Rights.

“The learned trial judge failed to determine whether the asset declaration forms kept in the records of the CCB is public documents. The judge failed to determine whether the public interest in disclosing the information outweighs whatever injury that the disclosure would cause the CCB and public officers.” Therefore, SERAP is urging the Court of Appeal to set aside Justice Hassan’s verdict and compel the CCB to release the asset declaration forms.

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