SERAP has won several cases during the course of implementation of the project. Similarly, during the period under reporting, SERAP obtained ground-breaking judgments from the Federal High Court sitting in Lagos. The first landmark judgment SERAP obtained from the Federal High Court 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 by Hon Justice M.B. Idris following a Freedom of Information suit no: FHC/IKJ/CS/248/2011 brought by SERAP.
The details ordered by the court to be disclosed include: information on the total amount of recovered stolen public assets by each government since the return of democracy in 1999; 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 1stDefendant/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 welcomed the judgment and 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 their Counsel, Sheba Olugbenga filed a Notice of Preliminary Objection on the following grounds: that SERAP lacked the locus standi to institute the action; that the action was statute barred; and that SERAP’s affidavit evidence offends the provisions of the Evidence Act. The Federal Government filed additional written address in support of their Preliminary Objection, arguing most extensively on the retroactive nature of SERAP’s request; that is, the Freedom of Information Act, having been enacted in 2011, does not apply to spending by governments since 1999.
In response, SERAP argued that the FOI Act is 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 is 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.”
SERAP 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. 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.”
SERAP further argued that, “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 adesideratum 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.”
Justice Idris held as follows “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.”
Consequently, SERAP sent a letter to the Attorney General of the Federation and the Minister of Justice Mr Abubakar Malami asking 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.”
SERAP 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.
Because the Attorney General has so far failed and/or neglected to respond to our letter, SERAP has commenced contempt proceedings against the Federal Government, Mr. Abubakar Malami (SAN), Minister of Justice, and Alhaji Ahmed Idris Accountant-General of the Federation “for failing to comply with the judgment ordering publication of the spending of recovered stolen funds since return of democracy in 1999.” The form 48 contempt suit was filed at the Federal High Court, Lagos “following the service on Mr Malami and Alhaji Idris of the certified true copy of the judgment of 24 March 2016 by Justice Muhammed Idris.” Form 48 which is the notice of consequence of disobedience of court orders reads in part: “Unless you obey the orders of the court contained on the reverse side of this process you shall be deemed to have disobeyed the orders of the court and shall be liable to committed to prison for contempt.”
SERAP said “Despite the service of the certified true copy of the judgment on both the Attorney General of the Federation and the Accountant-General of the Federation they have failed and/or neglected to acknowledge the judgment let alone obey it. It’s unacceptable to take the court, which is the guardian of justice in this country, for a ride. A democratic state based on the rule of law cannot exist or function, if the government ignores and/or fails to abide by Court orders.”
The second ground-breaking judgment from the Federal High Court sitting in Lagos obtained by SERAP ordered former Minister of Finance, Dr. Ngozi Okonjo-Iweala and the Federal Government to “provide information on the spending of the alleged missing N30 trillion which represents some accruable income to the Federal Government during the last four years of the Administration of former President Goodluck Jonathan.” The judgment was delivered by Hon Justice Ibrahim Buba following a Freedom of Information suit number FHC/L/CS/196/2015 brought by SERAP.
SERAP’s suit followed revelations by the former Governor of Central Bank of Nigeria (CBN), Charles Soludo, that at least N30 trillion “has either been stolen or unaccounted for, or grossly mismanaged over the last few years under the Coordinating Minister of the Economy and Minister of Finance, Dr Ngozi Okonjo-Iweala’s watch.”
Justice Buba’s judgment reads in part: “Mrs Okonjo-Iweala and the Federal Government have no legally justifiable reason for refusing to provide SERAP with the information requested for. The Court has gone through the application and agrees that SERAP’s application has merits and the argument is not opposed. SERAP’s application is granted as prayed.”
The Court agreed with the arguments by SERAP that Mrs Okonjo-Iweala and the Federal Government “should have either supplied the information requested by SERAP or communicate her denial within 7 days of receipt of the letter from SERAP if she considers that the request should be denied.”
The judgment by Justice Buba reads in part: “Preliminary objection by Mrs Okonjo-Iweala and the Federal Government is misconceived, the court upholds the arguments by SERAP for the reasons stated herein. SERAP commenced this proceeding by way of Originating Summons dated 23 February 2015 and filed 25 February 2015. Mrs Okonjo-Iweala and the Federal Government filed a Memorandum of Conditional Appearance, a Notice of Preliminary Objection and written address, all undated but filed on 29 September 2015.”
“The preliminary objection is on the following grounds: that SERAP did not obtain the mandatory leave of the Federal High Court to issue and serve the Originating Summons and other processes outside Lagos State; that there is no mandatory endorsement on the Originating Summons that it is to be served on Mrs Okonjo-Iweala and the Federal Government in Abuja and outside jurisdiction of this Court. The only issue for determination is whether Mrs Okonjo-Iweala and the Federal Government should be heard on their preliminary objection considering the totality of the circumstances of this case.”
“He who wants equity must do equity. This suit was filed on 25 February 2015 and from the record of the court was served on Mrs Okonjo-Iweala and the Federal Government on 3rd July, 2015. It took about 3 months for them to come up with technical response to the simple request for information under the Freedom of Information Act 2011. Mrs Okonjo-Iweala and the Federal Government have therefore been caught by Order 29 of the Rules of this Court, which requires that an application shall be made within 21 days after service on the Defendants of the originating summons.”
“If Mrs Okonjo-Iweala and the Federal Government want to raise issues about service, the law does not permit of demurer. The proper route for them should have been to join issues with the originating summons and also file their objections. In the present case by SERAP, the Notice of Preliminary Objection by Mrs Okonjo-Iweala and the Federal Government is incurably defective for not conforming to order 29 of the Rules of this Court. The process adopted by Mrs Okonjo-Iweala and the Federal Government in this suit is to come by way of demurer. This process has long been abolished by the Rules of this Court. By Order 16 Rule 1 of the Rules of this Court, no demurer shall be allowed and rule 2 provides that a party shall be entitled to pursue by his pleadings any point of law and any point of law so raised shall be disposed by the judge who tries the cause at or after trial.”
“The implication of this clear provision of the rule of court is that Mrs Okonjo-Iweala and the Federal Government must join issues with SERAP on the originating summons no matter how flimsy, instead of looking for a technical way out. This technical way out has failed. The concept of demurer as presently raised by Mrs Okonjo-Iweala and the Federal Government is no longer known to law especially the Federal High Court of Nigeria. It is the position of the law that the application of Mrs Okonjo-Iweala and the Federal Government should fail. Mrs Okonjo-Iweala and the Federal Government, having failed to file Counter Affidavit to SERAP’s suit, are deemed to have forfeited that option of filing anything again.”
“Having shown why the Application by Mrs Okonjo-Iweala and the Federal Government should be dismissed for failing to join issues with SERAP, the originating process must be moved on the merits. On the issue of failure to obtain pre-requisite consent/leave of Court to issue and serve the originating summons on Mrs Okonjo-Iweala and the Federal Government outside of jurisdiction, Order 6 Rule 31 states that ‘in this Order out of jurisdiction means out of the Federal Republic of Nigeria.”
“It is also necessary to refer to sections 97 and 99 of the Sheriff and Civil Process Act. The provisions apply to the validity of the service and have nothing to do with the validity of the originating process. On the strength of this clear provision, which Mrs Okonjo-Iweala and the Federal Government did not deny and incapable of denying at this point, their objection is dismissed as the validity of the process is not affected in any way. The main issue in this Court’s view bothers on the legal binding obligation imposed on Mrs Okonjo-Iweala and the Federal Government by the provisions of the Freedom of Information Act access to a record of information requested for. In the case at hand, SERAP through its letter of 2 February 2015, Exhibit A, sought the information relating to the spending of the alleged missing N30 trillion, which represents some accruable income to the Federal Government during the last 4 years of the Administration of President Goodluck Jonathan. Exhibit A has been received by them, and Exhibit B is the acknowledgement of receipt of Exhibit A.”
“However Mrs Okonjo-Iweala and the Federal Government have since the receipt of the request letter failed, refused and or neglected to provide SERAP with the information it requested for within their custody. They should have either supplied the information requested by SERAP or communicate their denial within 7 days of receipt of the application from SERAP if it considers that the application should be denied.”
In a press release SERAP welcomed the judgment and said that, “This judgment shows the important role that Nigerian courts can play in the efforts to promote transparency in government and combat corruption and the impunity of perpetrators. It also confirms that high-ranking government officials can no longer escape accountability for their action while in office. We urge Mrs Okonjo-Iweala to cooperate with the authorities in the efforts to ensure the full and effective enforcement of the judgment.”
Mr Soludo had earlier reportedly asked Mrs Okonjo-Iweala: “How many trillions of naira were paid for oil subsidy (unappropriated?) How many trillions (in actual fact) have been ‘lost’ through Customs duty waivers over the last four years? Can you tell Nigerians why the price of diesel has still not come down despite the crash in global crude oil prices, and how much is being appropriated by friends in the process?”
SERAP has filed necessary papers to secure the implementation of the judgment by the government.
The third case is administrative request to the Attorney General of the Federation and Minister of Justice Mallam Abubakar Malami, SAN requesting him to “urgently take steps to take over and prosecute all 31 former governors suspected of official corruption while in office.” Following SERAP’s request Mr Malami has now re-opened the case and expressed public commitment to pursue the cases against all the former governors to satisfactory conclusion.
Earlier in our request to Mr Malami, SERAP said that, “is necessary to send a strong signal that the President Muhammadu Buhari government will not tolerate high level official corruption no matter who is involved, and to secure public confidence and trust in the office of the Attorney General.”
The request reads in part: “This request is brought to give practical effect to the exercise of the powers of the Attorney-General under Section 174(1) (b) of the Constitution of Nigeria 1999 (as amended). The request is also entirely consistent with your widely publicised commitment to audit and pursue high level corruption cases and end the impunity of perpetrators in the country.”
“SERAP would like to draw your attention to the Economic and Financial Crimes Commission (EFCC) Report presented to the National Assembly in 2006 by the former Chairman of the EFCC, Mr Nuhu Ribadu. The Report, which was accepted and adopted by the National Assembly, documented the cases and indictments against 31 former governors. SERAP urges you to seek and obtain a copy of the Report from the National Assembly, and to use this as a basis to pursue prosecution of the governors. Pursuing these cases would help to enhance public confidence and trust in the office of Attorney General, as previous occupiers of the office seemed to be disinterested in prosecuting or facilitating prosecution of high level cases of official corruption.”
“SERAP believes that there is already a strong prima-facie case and sufficient information for you to exercise your constitutional authority and ensure that suspected perpetrators of high level official corruption are brought to justice fairly and to recover and repatriate stolen public wealth. Section 174 of the 1999 Constitution grants to the Attorney-General the power to among others “(a) institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly; (b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person.” This section also requires the Attorney General to exercise his power having regard to “the public interest and the interest of justice.”
“SERAP believes that there is at the moment no greater public interest than an urgent and diligent prosecution of the cases of indicted 31 former governors. Because corruption is well entrenched in Nigeria, fighting it requires not only a minimum level of political will and an adequate and sensible strategy, but also involves being ready and able to confront powerful interest groups that clearly benefit from the status quo and will resist any such initiatives. The full and effective prosecution of the former governors is a test case for the Buhari government’s commitment to fight corruption and end impunity of perpetrators in the country. By effectively prosecuting the indicted former governors, you would not only be exercising your constitutional mandate and authority but also protecting the sanctity and values entrenched in the 1999 Constitution. The allegations against the former governors are grave and prohibited by law.”
“Therefore, prioritising these cases is important to give practical effect to the constitutional principle of the rule of law. We believe that it is the involvement of many high-level public officials in corruption and the display of unsubstantiated wealth that have precipitated corruption among low level public servants in the country. Pursuing the 31 cases would also help to obtain the international support and mutual legal cooperation and assistance required to recover and repatriate stolen wealth, which can then be spent to provide the much needed infrastructure and development of the country.”
“SERAP notes that 24 of the indicted 31 former governors by the EFCC have also been indicted by the Independent Corrupt Practices and Other Related Offences Commission (ICPC), and their cases referred to the former Chief Justice of Nigeria, Mohammed Uwais for corruption trial. SERAP hopes that you will take forward these cases as a matter of public interest and for the sake of justice for victims of corruption. SERAP will leave open the possibility of legal action to compel you to take steps in this direction.”
The fourth case filed by SERAP was an urgent appeal to Mr. David Kaye, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, requesting him to “you use your good offices and position to urgently request the National Assembly of Nigeria, specifically the Senate, to withdraw a bill which if passed into law would undermine the internationally recognized right to freedom of expression and press freedom on the internet in the country.” Mr Zeid Ra’ad Al Hussein UN High Commissioner for Human Rights was copied in the urgent appeal.
The positive response from the UN on the basis of SERAP’s request contributed to forcing the Senate to withdraw the obnoxious bill. SERAP said, “We can confirm that the Office of the Special Rapporteur is now considering our petition. We have received communication from Marcelo Daher at the Office of the Special Rapporteur to this effect. The Special Rapporteur has also requested a copy of the bill, which SERAP has promptly sent to Marcelo Daher. SERAP appreciates the prompt attention to this matter by the Office of the Special Rapporteur. We urge the UN to pursue this matter to a satisfactory conclusion by ensuring that the Nigerian Senate is not allowed to strangulate media freedom and social media in the country. The only option for the Senate now is to withdraw this obnoxious bill without further delay and end this international embarrassment. SERAP will be prepared to withdraw the petition at the UN if the Senate can follow this honourable path.”
SERAP’s arguments read in part: “We are seriously concerned that the National Assembly of Nigeria will any moment from now pass a bill to jail for two years and fine anybody or group of persons who send any alleged false text message or post false message on the social media against another person. SERAP is concerned that rather than increasing universal and inclusive access to the Internet for all Nigerians, the National Assembly of Nigeria is working to undermine access of citizens to the Internet. Yet, freedom of expression entails the ability to both speak and receive information, including through the social media and other generated content services such as YouTube, Twitter, Facebook, and chat applications.”
“By initiating this bill, the National Assembly is impermissibly restricting the ability of the citizens to use these tools to communicate, connect, and seek independent sources of information. SERAP also contends that the bill will restrain access to internet and social media, curtail the freedom of the press, and online content in illegitimate, disproportionate, or otherwise unlawful and abusive ways. The real targets of the bill are social media and human rights defenders that might be critical of government policies or report on corruption involving high ranking government officials.”
“International law provides that any restriction to rights online must be provided in law, pursuant to a legitimate aim, and limited to only what is necessary and proportionate. SERAP believes that the bill falls far short of international requirements of legitimacy, necessity and proportionality. The bill will also have chilling effect on freedom of expression in the country, as it will create an atmosphere of fear among bloggers and online activists who may not post critical commentary on Facebook or other social media platforms for fear of being sent to jail. The Internet cannot enable citizens and others to participate in governance or critique government policy if they cannot freely access information, use social media services, or if they fear being sent to jail simply for expressing their views.”
“The Senate has set in motion a process to accelerate the passage of this obnoxious bill. SERAP is seriously concerned that if passed into law the bill would contravene Nigeria’s international legal obligations, including under the African Charter on Human and Peoples’ Rights, the International Covenant on Civil and Political Rights and the UN Convention against Corruption to which Nigeria is a signatory.”
“While it is important to protect personal integrity in social media, a clean, transparent and accountable government that has nothing to fear will not use this ground as an excuse to undermine the sacred right to freedom of expression.”
SERAP therefore asked the Special Rapporteur to: Publicly express concerns about the proposed bill and insist that the National Assembly of Nigeria should withdraw the bill; Urge the National Assembly in particular the Senate to protect freedom of expression online in line with international standards; Urge the National Assembly to allow free space for expression without fear of criminal prosecution, and not to contemplate impermissible restrictions to access internet and social media; Urge the National Assembly to promote and facilitate access to the media in the country; and Urge the National Assembly to ensure that in the exercise of its legislative duties it complies with Nigerian international human rights obligations and commitments
The bill, titled: “A Bill for an Act to Prohibit Frivolous Petitions and other Matters Connected therewith”, is sponsored by Senator Ibn Na’Allah, APC, Kebbi South. The bill provides for an option of N4 million for persons convicted of false newspaper, radio and television statements and N2 million for offenders of false phone text messages or messages on Facebook, twitter, Instagram, or WhatsApp. The bill also punishes alleged malicious intent to discredit or set the public against any person or group of persons, institutions of government.
The obnoxious social media bill reads in part: “Where any person through text message, tweets, WhatsApp or through any social media post any abusive statement knowing same to be false with intent to set the public against any person and group of persons, an institution of government or such other bodies established by law shall be guilty of an offence and upon conviction, shall be liable to an imprisonment for two years or a fine of N2,000,000.00 or both fine and imprisonment.”
SERAP also sent a request to former President Goodluck Jonathan seeking explanations from him on “what you knew or had reason to know on the apparent diversion and sharing of over $2 billion meant for purchase of arms to fight Boko Haram.”
SERAP’s request reads in part: “We are sending you this open letter to seek explanations from you, as former President and Commander-in-Chief of the Nigerian Armed Forces, on what you knew, or had reason to know on the apparent diversion and sharing of the over $2 billion meant to purchase arms to empower Nigerian soldiers to fight Boko Haram. SERAP considers that there is enough material in the public domain to suggest that over $2 billion meant for purchase of arms to equip Nigerians soldiers fighting Boko Haram in the North East of the country was diverted and shared among high-ranging government and party officials under your watch as President and Commander-in-Chief of Nigerian Armed Forces.”
“SERAP and indeed Nigerians reserve the right to pursue justice through appropriate national and international accountability mechanisms to ensure that everyone involved in this heinous crime is brought to justice in accordance with international standards of fairness. Is it correct to suggest that the budget of over $2 billion to purchase arms for Nigerian soldiers fighting Boko Haram in the North-East of the country was authorised by you or your office? In other words, did your former National Security Adviser (NSA), Col. Sambo Dasuki (rtd) seek your approval to collect from the Central Bank of Nigeria the over $2 billion meant for purchase of arms for Nigerian soldiers?”
“If so, Nigerians would like to hear from you whether the apparent diversion and sharing of our commonwealth by your former NSA was expressly or implicitly authorised by you. Is it then correct to suggest that the former NSA implements presidential decisions and not make them? If so, is it also correct to suggest that the apparent diversion and sharing of the over $2 billion meant for purchase of arms was a presidential-level decision and that you signed off on it? Is it not correct to suggest that your Administration acted on the basis that it was essentially unrestrained by international or Nigerian law in engaging in or encouraging the apparent diversion and sharing of the over $2 billion meant to purchase arms for Nigerian soldiers in order to protect them against attacks from Boko Haram and to enhance their ability to defend the territorial integrity of the country and provide security for its citizens?”
“Assuming you did not directly order or authorise the apparent diversion and sharing of the over $2 billion meant to purchase arms for Nigerian soldiers, is it fair to suggest that you at least knew, or had reason to know, that your own former NSA was apparently involved in the heinous crime of corruption to wit: the diversion and sharing of over $2 billion meant to purchase arms for Nigerian soldiers; and did not take all necessary and reasonable measures in your power as Commander-in-Chief and President to prevent the alleged diversion and sharing of our commonwealth, as explained above? Would you accept that the apparent diversion and sharing of the over $2 billion was largely due to your failure to ensure: (1) that system was in place to ensure a transparent and accountable spending of budget for military operations in strict accordance with the standards of international law including the UN Convention against Corruption; (2) that any such system was operating in a continuous and effective manner; and (3) that violations of the standards were punished when detected by that system?”
“After the apparent diversion and sharing of the over $2 billion was brought to your attention, did you take any step to refer your former NSA and all those involved in the diversion and sharing to appropriate anticorruption agencies to ensure that all those who were alleged to be responsible for this heinous crime of corruption are brought to justice? Would you agree that the apparent diversion and sharing of the over $2 billion meant for purchase of arms for Nigerian soldiers has seriously undermined the ability of the soldiers to defend themselves and fight Boko Haram; resulted in some soldiers being unfairly tried for refusing to fight without being provided with necessary arms; inflicted severe pain or suffering; and caused unnecessary loss of lives and displacement of law-abiding citizens?”
“Would SERAP be correct to suggest that you, as President and Commander-in-Chief, knew about the authorization, apparent diversion and sharing of the over $2 billion meant to purchase arms for Nigerian soldiers, in the chain of command involving your former NSA and others? Would it therefore be correct to further suggest that your acts and/or omissions concerning the apparent diversion and sharing of the over $ 2 billion were such as to give rise to personal liability through command responsibility for the actions of your former NSA and others who worked under you?”
“Would you now, on the basis of the above, apologise to Nigerians for the apparent diversion and sharing of the over $2 billion and the catastrophic consequences for Nigerian soldiers and their families, including those who have lost their lives; those unfairly tried and convicted; and millions of displaced Nigerians? Nigerians are eagerly awaiting your clarifications on the issues raised above, and your apology.”
SERAP’s intervention also prompted the EFCC to investigate allegations of corruption against some senior lawyers and their alleged complicity or facilitation of judicial corruption. SERAP’s intervention called for called “for tougher sanctions against those found to be involved if large scale political corruption is to be meaningfully combated and corruption-free judiciary is to become a reality.”
SERAP’s intervention reads in part: “It’s not only professional misconduct but also a crime for a lawyer to knowingly assist or induce another to break, violate or attempt to violate the rules of professional conduct or commit a corrupt act and other action prejudicial to the administration of justice that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. Lawyers are officers in the temple of justice but improperly influencing a public official to achieve results by means that violate lawyers’ rules of professional conduct or knowingly assisting a judge or judicial officer in conduct that violates applicable rules of judicial conduct or other laws is a clear negation of this sacred duty.”
“Yet, corrupt lawyers and judges often get away with their misconduct and crime. This impunity has contributed to the sporadic and lax prosecution and punishment of officials responsible for large-scale corruption, while, conversely, imposing severe sanctions for petty corruption and criminals, so as to give the impression of justice. This situation violates the underlying legal and moral assumptions that all persons will be treated equally, fairly, and with respect.”
“Any lawyer who acts in such a way as to be directly responsible for the act of corruption or acts as part of a conspiracy to corrupt should face liability as a “principal” offender.” Even where a lawyer is not directly responsible for the act of corruption but facilitates or otherwise provides assistance to a principal offender, he/she should be liable as an accessory or accomplice. This accountability mechanism for lawyers and judges must follow due process of law. The obligation on lawyers not to engage in illegal activities is vital in upholding professional standards and obviously extends to the activities of bribery and corruption, as lawyers must not themselves breach, or facilitate a breach, of the law.”
“For the sake of the legal profession, the cause of justice and effective remedies for victims of large scale corruption such as the arms procurement scandal, appropriate authorities particularly the Nigerian Bar Association (NBA) have to speak out strongly against corruption in the legal profession. The NBA has to provide strong leadership including by strongly and publicly speaking out against corruption in the legal profession and the judiciary, promoting tougher sanctions against corrupt lawyers even if those involved are senior members of the bar including SANs, and judges and creating, developing and actively promoting anticorruption initiatives for the legal profession if it is to remain credible, relevant and add value to the ongoing fight against large scale corruption in the country.”
“The NBA in fact has an abiding responsibility to consistently and proactively promote and ensure lawyers’ compliance with anti-corruption and ethics rules, and to encourage lawyers to carry out their professional duties diligently and conscientiously and refrain from doing anything which would expose the legal profession to ridicule.”
SERAP also petitioned Ms. Monica Pinto UN Special Rapporteur on the independence of judges and lawyers requesting her to “use your good offices and position to urgently prevail on the National Judicial Council (NJC) to suspend the judge involved in the alleged receipt of N225, 000 bribe.”
SERAP’s petition also asked Ms Pinto to prevail on “the Nigerian Bar Association (NBA) to ask the Legal Practitioners Disciplinary Committee (LPDC) to suspend the lawyer involved in the alleged payment of N225, 000 bribe in Nigeria, pending the completion of any investigation and/or final determination of any trial on the matter.”
SERAP’s petition reads in part: “SERAP is concerned that despite these serious allegations of bribery and corruption, the National Judicial Council has failed and/or refused to suspend the judge involved pending any investigation and/or trial of the judge. Similarly, the Nigerian Bar Association has failed and/or refused to ask the Legal Practitioners Disciplinary Committee to suspend the senior lawyer involved pending the final determination of the case against him.”
“SERAP is concerned that the allegations of bribery and corruption such as the alleged payment and receipt of N225, 000 threaten the very essence of the independence of the judiciary and the actors in the legal profession. Such allegations also severely undermine the rule of law, the public’s confidence in the judiciary, raise the cost for judicial services because litigation is driven by corruption instead of by the legal process, discourage people from resorting to the formal justice system, and ultimately victimise the most disadvantaged sectors of the population who do not have the means to play by the informal rules set by a corrupt system.”
“The allegations also undermine fair competition and economic growth, as there is a clear correlation between the level of economic activity in a country and an effective judiciary combating corruption. SERAP believes that the NJC and the NBA are in the best position to tackle judicial corruption and corruption within the legal profession, and to ensure the application of appropriate disciplinary measures in cases of bribery and corruption such as the alleged N225, 000 bribe highlighted above.”
“Indeed, both the NJC and the NBA have clear responsibilities to counter and combat all manifestations of judicial corruption and corruption within the legal profession. Therefore, the continuing failure by the NJC to suspend the judge involved, and the NBA to ask the LPDC to suspend the lawyer involved will continue to allow judicial corruption to grow, undermine the efforts of all other institutions of governance, and can lead to impunity. SERAP notes that article 14 of the International Covenant on Civil and Political Rights recognizes the principle of equality of all persons before courts and tribunals and the guarantee of a competent, independent and impartial tribunal established by law. However, the enjoyment of the right to a fair, effective and efficient administration of justice is impossible if the judiciary and the legal profession cannot act with integrity.”
SERAP therefore urged Ms Pinto to prevail on both the NJC and the NBA to:
1. Exercise their mandates to deal fairly with any suspicion or evidence of acts of corruption;
2. Take measures to strengthen the integrity of the bench and the bar, and to prevent opportunities for corruption among members of the judiciary;
3. Fully and effectively enforce the codes of conduct to promote and ensure correct, honourable and proper performance of judges and lawyers;
4. Promptly and adequately investigate any allegations of corruption in the judiciary and the legal profession, and to ensure that any sanction or investigative process against judges and lawyers does not undermine the credibility of judiciary and the legal profession or offend the right to a fair trial;
5. Place the independence of judges and lawyers at the centre of their policies aimed at preventing and combating corruption and strengthening the rule of law and human rights;
6. Contribute to strengthening safeguards for the independence of the judicial system and safeguards against judicial corruption in order to ensure the accountability of judges and lawyers;
7. Encourage judges and lawyers to discharge their functions with integrity and impartiality and preserve the dignity of their profession;
8. Recognize that the requirement of independence and impartiality of the judicial and legal professions does not exist for the benefit of the members of the profession themselves, but rather for the users of the justice system, as part of their inalienable right to a fair trial
It would be recalled that Rickey Tarfa, a senior Nigerian lawyer, allegedly made phone contacts with Justice Mohammed Yunusa in a case before the judge. The Economic and Financial Crimes Commission (EFCC) alleged that Mr. Tarfa’s law firm, Rickey Tarfa & Co. paid N225, 000 into Justice Yunusa’s bank account.
SERAP also sent petitions to the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and Other Related Offences Commission (ICPC) requesting them to investigate the degree of complicity of Nigerian banks including the Central Bank of Nigeria (CBN), and financial institutions in the large-scale stealing of over N70 billions meant for purpose of arms for Nigerian soldiers fighting Boko Haram in the North-east. In the petition, the organisation expressed concern that while the CBN turned the blind eyes to corruption involving high-ranking government officials, it continues to engage in anti-poor policies such as introducing charges for use of Automated Teller Machine (ATM cards, and threatening to send to jail economically and socially disadvantaged citizens who use dollars for local transactions.
SERAP’s petition reads in part: “This inconsistent and discriminatory approach of penalising the economically and socially disadvantaged citizens for minor infractions while showing no concern about the over N70 billion stolen arms purchase funds is unlawful as it is contrary to national and international anti-money laundering standards and best practices. SERAP believes that the CBN cannot absolve itself of complicity in the stealing of the over N70 billion and that this large-scale corruption would have been prevented had the CBN been alive to its leadership and supervisory roles in the implementation of anti-money laundering standards within its systems and in other banks.”
SERAP therefore urged the EFCC and ICPC to urgently institute a joint probe of the roles played by the leadership of the CBN and other banks and financial institutions in the stealing of over N70 billion arms purchase funds. It further demanded that the EFCC and ICPC should also name those within the leadership of the CBN who facilitated the withdrawal and subsequent stealing of the arms purchase funds, and ensure that anyone found to be responsible is brought to justice promptly: Name and shame any banks and financial institutions complicit in the arms purchase funds; Work with the National Assembly and civil society to devise a system that will stop the CBN being used by high-ranking corrupt government officials to steal from the public treasury.
On the basis of our petition, both the EFCC and ICPC have now opened investigation on the roles played by the leadership of the CBN and other banks and financial institutions in the stealing of over N70 billion arms purchase funds.
In addition, SERAP made a Freedom of Information request following disclosure of funds recovered from some high-ranking public officials and private individuals. The request made to the Minister of Information, Alhaji Lai Muhammed asked 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.”
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.
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.”
Following the failure to provide the information requested, SERAP has now filed a case before the Federal High Court in Lagos asking the court to compel the government to provide the information pursuant to the provisions of the Freedom of Information Act.
SERAP also urged President Muhammadu Buhari and Vice President Yemi Osinbajo to “swiftly move to declare their assets publicly, consistent with their apparent anticorruption credentials and their expressed commitments to do so and in the best interest of transparency and accountability.” SERAP’s request followed the declaration of assets by the President and Vice President to the Code of Conduct Bureau as required by the Constitution.
SERAP’s appeal on the matter reads in part: “We welcome the official declaration of assets by the President and Vice President. This clearly complies with the requirements of the Nigerian Constitution as contained in Chapter VI Section 140. However, the declaration before the Code of Conduct alone falls far short of the commitment to publicly declare their assets. SERAP recalls that the President had said before the election that he would publicly declare his assets and liabilities, and encourage all his appointees to publicly declare their assets and liabilities as a pre-condition for appointment. We now expect the President to fulfil this promise to the Nigerian people.”
“We trust that the President and Vice President will move swiftly to publicly declare their assets and to publish widely the information on a dedicated website.” Public disclosure of assets will give the general public a true picture of the assets of the President and Vice President and will send a powerful message that it is not going to be business as usual with this government. This will also follow the best practice by former President Umaru Musa Yar’Adua, boost this government’s fight against corruption and impunity of perpetrators, and fully comply with the provisions of chapter two of the dealing with Fundamental Objectives and Directive Principles of State Policy, which among others require the government to take steps to eradicate corrupt practices and the abuse of power.”
“We believe that public disclosure of assets is crucial for ensuring that public officials’ personal interests including that of the President and Vice President as the leaders of the nation, do not conflict with their duties and responsibilities. Public disclosure also helps to provide a baseline and thus means for comparison to identify assets that may have been corruptly acquired and that a public official may legitimately be asked to account for. We also urge the President to urgently take measures to seek amendment of the law relating to declaration of assets to include the requirement of public disclosure so as to bring it in line with international standards and best practices such as the UN Convention against Corruption.”
SERAP also work to put pressure on the Federal Government to pay N6.5 million (over $30,000 US) in compensation to victims of shooting by armed security forces in Bundu Ama, Port Harcourt. The payment followed the ECOWAS Court of Justice judgment obtained by SERAP on behalf of 10 residents of Bundu waterfront and surrounding communities.
The court ruled that there was no justification for the shootings and that the Nigerian government had breached its obligation to protect and respect the right to peaceful association and assembly. The court awarded a total of 11 million Nigerian Naira – nearly $70,000 USD – in damages.
SERAP welcomed the payment and said that, “We welcome the payment of compensation by the government. This shows that there is penalty for the government when it allows its security forces to use excessive force against peaceful protesters, and unlawfully drive them away from their homes, with tragic consequences for citizens and communities. That was the case here. The victims now at last have the justice they have sought for many years. For them the significance of this moment cannot be over emphasised.”
“This is a timely reminder of Nigeria’s obligations to ensure rights to peaceful assembly and association, and freedom from forced evictions, and to put a stop to current practice. However, with several aspects of the judgment and the case yet to be enforced and resolved, and full and fair compensation paid as ordered by the ECOWAS Court, the matter is far from over. Reparations are only meaningful insofar as the judgment has not been fully implemented and the government has not aligned its policing practices with international human rights standards. That’s what needs to happen. SERAP is calling on the government of President Muhammadu Buhari to fully and effectively implement the judgment in a comprehensive and timely manner, as well as to ensure guarantees of non-repetition.”
It would be recalled that Israel Okari; Joy Williams; Austin Onwe; Tamno Tonye Ama; Victor Opium; Mark Bomowe; Napoleon Tokubiye; Napoleon Tokubiye; Jonathan Bokoko; Williams Tamuno; and Linus John with the support of SERAP. The Suit Number ECW/CCJ/APP/10/10 was filed on behalf of SERAP and the residents by Femi Falana, SAN, Adetokunbo Mumuni and Sola Egbeyinka. The Minister of Justice and Attorney General of the Federation; Rivers State governor Rotimi Amaechi; Commissioner for Justice Rivers State; and the Commissioner for Urban Development, were joined as Defendants.
Amnesty International, London supported the suit through amicus brief filed on behalf of the organisation by Dr Kolawole Olaniyan.
SERAP also sent a request to President Muhammadu Buhari asking him to use his “good offices and leadership to instruct appropriate government agencies to begin a thorough and effective investigation into allegation of corruption and denial of entitlement and allowances under the Niger Delta Presidential Amnesty Programme.”
The request reads in part: “SERAP has received a petition from Mr. Sukore O Daniel, Mr. Ekperi Abel, Mr. Enodeh B. Eniyekperi, Mr. Ebaretonbofa J. Keme, Mr. Akperi Tamaraebi and Mr. Godspower A. Desmonds all of Patani Community in Delta State (Hereinafter known as Petitioners).”
“The petitioners alleged that they have gone through the required training under the Amnesty Programme by the Federal Government. Although the Amnesty Office has issued identification cards to the petitioners and the Office has collected their bank details, the petitioners have not received their monthly payment of N65, 000 (Naira) due to them under the Programme from November, 2011 to date.”
“We are seriously concerned that the accrued allowances to the petitioners might have been stolen, diverted or mismanaged. We fear that these cases may not just be isolated incidents and that they are likely to be a broader pattern of corruption, and impunity, and are in large part the consequence of the previous government’s failure to address it. We believe that the President can play a leadership role in helping to address the problem and ensure justice and fair play to those affected. Doing so will be entirely consistent the anticorruption policy of this government.”
“Nigeria has an obligation under international anticorruption treaties such as the UN Convention against Corruption to which the country is a state party to investigate any allegations of corruption and mismanagement, as alleged by the petitioners in this case. SERAP believes that a thorough investigation to establish the truth will contribute to transparency and accountability, consistent with the policy of your government. It will also help to provide justice to those that have been affected.”
“SERAP therefore urges you to use your good offices and leadership to ensure that the allegations are thoroughly and transparently investigated, and to make public the findings of any investigation. We hope you will give this matter the urgent attention it deserves. We look forward to receiving from you information regarding the steps you are taking to address the issues raised in this petition.”
Ahead of the meeting of President Muhammadu Buhari with officials of the Obama government in Washington DC, SERAP requested President Obama to “back up his expressed commitment on stolen assets by taking thoughtful and aggressive steps to deal with the problem with the seriousness and intensity that has been previously lacking.”
SERAP’s request reads in part: “We welcome the commitment by President Obama to assist the Buhari government to track down billions of dollars in stolen assets from the country. However, greater efforts are required by the Obama government to follow through its commitment if it is to secure a measure of justice for Nigerian victims of corruption and money laundering. President Obama should establish a Presidential Advisory Committee and facilitate a Congressional Hearing on stolen assets from Nigeria. These initiatives would be tremendously important in bringing renewed attention to repatriation of stolen assets to Nigeria.”
“Corruption, money laundering and systematic violations of human rights go hand in hand and that is why President Obama should do everything within his power to get to the bottom of the stolen assets from Nigeria kept in the US. President Obama should also propose legislation to assist Nigerians in pursuing stolen assets in US banks and other institutions. Any such legislation should also require every bank and financial institution doing business in the US and their European affiliates to post on a central Internet site bank accounts of politically exposed persons and their families and friends from Nigeria.”
“There is need for accountability for stolen funds, and there should not be a statute of limitations on stolen assets.” The Obama government should move quickly to resolve the issue of returning the assets to the country in an expeditious, just and fair manner. Unless this is done, the rare opportunity the Obama government now has to right the injustice aided and abetted by the US banks will be gone. Recovering stolen assets from the US is a lingering issue that requires justice and fairness especially given the complicity of US banks and other institutions in corruption and money laundering in Nigeria, and the fact that stolen assets have contributed to the growth of US economy. Therefore, thoughtful and aggressive steps are needed if the Obama government is to change the asset recovery fatigue that characterised previous US administrations.”
“Indeed, the US government has an important responsibility to ensure not only that it returns stolen assets to the country but that it takes proactive steps to stop the stashing of such assets in its jurisdiction. When it comes to stolen assets from Nigeria the US government should use the same methodologies it adopts against terrorists using its banking system.”
“President Obama should also urge European governments and other financial centres keeping stolen assets from Nigeria to be more proactive in returning such assets through transparent procedures that are fair, just, and on the merits, without technical defenses. The Obama government can and should show the leadership in this field. If President Obama does not take the lead, the US and European financial centres will continue to serve as safe havens to stolen assets from Nigeria and elsewhere.
SERAP also welcomed the publication of asset declarations by President Muhammadu Buhari and Vice President Professor Yemi Osinbajo turns the page on transparency and accountability in Nigeria.
SERAP’s statement reads in part: “Compared to former President Goodluck Jonathan who notoriously failed to publish his asset declaration despite repeated demands by Nigerians, both Buhari and Osinbajo have shown by publicly declaring their assets that transparency doesn’t take years to achieve. Nigerians will now be able to use the assets published as a baseline and thus means for comparison at the end of the term of this government.”
“SERAP urges the Buhari government to also publish asset declarations of their senior officials and ministers once appointed. SERAP hopes that this publication of asset declarations will translate into real reform of the legal and institutional frameworks established to fight corruption and good governance as well as greater respect for human rights including socio-economic rights of Nigerians such as the rights to food, to health, to education and to adequate housing, and thus improved quality of life for ordinary citizens.”
“We also urge President Buhari to urgently take measures to seek amendment of the law relating to declaration of assets to include the requirement of public disclosure so as to bring it in line with international standards and best practices such as the UN Convention against Corruption.”
SERAP also sent a request to the leadership of the National Assembly asking them to “immediately end the ongoing process aiming to change the constitution to shield the Senate President, Dr. Bukola Saraki and Speaker of the House of Representatives, Yakubu Dogara and others from prosecution for corruption as this is tantamount to breaking the law.”
SERAP’s request reads in part: “It is a huge setback for transparency and accountability and the rule of law that the same privileged and powerful leaders of parliament that regularly make laws that consign ordinary, powerless Nigerians to prison for even trivial offences yet again want to establish elite immunity to protect themselves from any consequences for serious crimes of corruption and money laundering: that is the Nigerian justice system in a nutshell. This is called breaking the law.”
“SERAP notes that this initiative by the leaders of the National Assembly is coming at a time countries like Guatemala has voted unanimously to strip their president of immunity from prosecution for corruption. The message the leadership of the National Assembly is sending to us is clear: in Nigeria, powerful and influential actors must not be and are not subject to the rule of law. It’s simply not proper for lawmakers to be the chief advocates of immunity for corruption. It’s a clear breach of public trust and a form of political corruption for the parliamentarians to abuse their legislative powers, intended for use in the general public interest but instead for personal advantage. This is an unacceptable proposition as it gives the impression that both the Senate President and the Speaker of the House and others are above the law.”
“If the leaders of the National Assembly should have their way, this will shield lawbreaking and corrupt Senate President and Speaker of the House of Representatives from any legal accountability and rob millions of Nigerians of their rights to accountable government. Public officials who are genuinely committed to the well-being of the state and its people, and to the establishment of an effective and functioning system of administration of justice, should have absolutely nothing to fear. It will work with other members of the civil society to vigorously challenge this gift of immunity against corruption and blatant breach of public trust by the National Assembly.”
Following SERAP’s request, the Consumer Protection Council, CPC, issued a seven-day ultimatum to Volkswagen Nigeria to provide information on the status of its vehicles in relation to the emissions cheating software, which has reportedly affected 11 million cars worldwide.
CPC, in a letter to the automaker signed by its Director General, Mrs. Dupe Atoki, reads in part: “the attention of the Council has been drawn to some publications wherein Volkswagen has admitted the allegation that certain illegal “defeat device” software was installed in Volkswagen vehicles to cheat emission test. The resultant effect of this on the environment and quality of these cars is of great importance to the CPC.”
“The publications also indicated that Volkswagen had admitted that vehicles with 1.2, 1.6, and 2.0 litre EA 189 engines are all affected, (i.e. Golf, Beatle, Jetta and Passat models). CPC note that Volkswagen has a huge market in Nigeria, with many customers who may currently be in possession of the affected models. The Council requests Volkswagen Nigeria to within seven days of the receipt of its letter make available to it the number of affected vehicles in Nigeria (if any), steps taken to inform and sensitise consumers and efforts being made to facilitate quick recall of such vehicles in the country.”
CPC said its directive was pursuant to the powers of the Council to compel manufacturers to give public notice of any hazard inherent in their products. CPC’s action came on the heels of a scandal that the auto manufacturer’s diesel car engines were found to contain a software that can cheat pollution tests, making them seem cleaner than they actually are.
SERAP also sent a request to the National Assembly to withdraw the unconstitutional summon for Justice Danladi Umar, Chairman Code of Conduct Tribunal to appear before its Ethics Committee, as the Senate can’t arrogate to itself the power to summon judges without violating constitutional safeguards.
SERAP’s request reads part: “The summon represents a direct assault upon the principle of judicial independence as it undermines the constitutional principle of separation of powers and guarantee of a judicial system that is free from outside influence of whatever kind and from whatever source. The Senate of Dr Bukola Saraki is perpetrating a parliament of men and not of laws.”
“The constitutional power of the Senate can only be validly exercised if it’s intended to be in aid of the function of law-making itself. There is clearly no suggestion of contemplated legislation in this case. The Senate not only has exceeded the limit of its own authority, but assumed a power which could only be properly exercised by another branch of the government. We therefore advise Justice Umar to ignore its invitation as it is of no legal effect whatsoever.”
“The Senate in its blind zeal to protect the Senate President Dr Bukola Saraki who is facing corruption charges before the Tribunal is working hard to destroy the foundation of the country’s constitutional democracy. This is a blatant usurpation of power, and an attack upon the integrity of constitutional government and the rule of law. The Senate doesn’t have the power to summon any judge, including Justice Umar. If there is any credible allegation of corruption against Justice Umar, it ought to be dealt with by the appropriate law enforcement agencies and that cannot be the Senate.”
“The Senate can’t lawfully exercise any authority beyond the limits marked out by the constitution. It’s manifestly repugnant to constitutional safeguards which assign to each organ of the government its exclusive functions and a limited sphere of action. This invitation, coming on the heels of the decision by the Tribunal for Saraki’s trial to be conducted day-by-day pursuant to Section 396(6) of the Administration of Criminal Justice Act, 2015, is clearly politically motivated.”
“While the Senate is empowered under Section 88 of the 1999 Constitution (as amended) to conduct an inquiry for the purpose of enabling it to among others make laws, correct any defects in existing laws, expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence, it doesn’t possess the power to get involved in alleged criminal matter. The Senate is in no sense a court, police or anticorruption agency, and for it to attempt to act as one, would bring about insurmountable legal and political problems.”
SERAP also condemned as “self-serving and despicable the demand by some senators on Saturday for immunity and life pension for presiding officers of the National Assembly after their tenure in office.”
SERAP’s statement followed the proposals by the senators at a two-day retreat on Constitution Review organised by the Senate Ad Hoc Committee on Constitution Review in Lagos on Saturday. Among others, the proposals want presiding officers, such as President of the Senate, Deputy President of Senate, Speaker of the House of Representatives and Deputy Speaker of House of Representatives to enjoy life pension and immunity, since the executive and judiciary are enjoying it.
SERAP’s statement reads in part: “The retreat by the senators and representative was titled ‘Towards Ensuring Governance Accountability in Nigerian federalism’ but their grand strategy is the calculated use of legislative powers to alter the 1999 constitution in their own favour so that they can enjoy life benefits at the expense of millions of economically and socially disadvantaged Nigerians who voted them into office. SERAP calls on the Senate President Bukola Saraki and the Speaker of the House of Representatives Yakubu Dogara to show leadership and refocus the National Assembly to be able to perform their law-making functions in a manner that will rid the country of impunity for corruption and not embrace or tolerate it.”
“Granting senators and representatives immunity and life pensions would neither enhance governance accountability nor contribute to the betterment of Nigerians. Nigerians will reject any self-serving attempt by the senators and representatives to tear up section 308 of the 1999 constitution to grant their leaders immunity from prosecution for corruption and money laundering. Nigerians will also reject the despicable attempt by the senators and representatives to grant themselves life pensions. SERAP will pursue all legal avenues nationally and internationally to compel the senators to drop the immunity and life pension proposals.”
“SERAP is worried that the proposal for life pensions is coming from some ex-governors in the National Assembly that continue to enjoy ‘pensions’ for serving as governors for 8 years. This is a gross injustice and double jeopardy for millions of Nigerian pensioners who continue to be denied the fruit of their labour in old age. It’s a massive let-down for those elected to make laws for the peace, order and good governance of the country to prioritise their own personal interests over and above those of millions of Nigerians who continue to suffer the effects of high-level official corruption.”
“Rather than engaging in constitutional amendment for personal aggrandisement the leadership of the National Assembly should encourage the inclusion in the constitution of legally enforcement economic and social rights such as the right to food, to adequate housing, to access to healthcare, to work and goog conditions of service, and to adequate standards of living for millions of Nigerians who continue to live in poverty. Saraki and Dogara should promote constitutional amendment that will ensure and provide legal standing and access to effective remedies for victims of corruption.”
“This proposal by the senators is not coming out of the blue. Since the start of his corruption trial, the Senate President Saraki has worked with other senators to make subtle and not-so-subtle attempts to grant principal officials of the National Assembly immunity from prosecution for corruption and money laundering.”
SERAP also sent a request to the EFCC stating that “the freezing of Governor Ayodele Fayose’s account by the Economic and Financial Crime Commission (EFCC) is lawful under section 308 of the 1999 constitution and international law particularly the UN Convention against Corruption to which Nigeria is a state party.”
SERAP’s request reads in part: “The freezing of the account is a preventive measure targeting the rem, which is necessary for the conduct of an effectiveinvestigation of allegations of corruption involving former National Security Adviser Sambo Dazuki. The freezing of accounts of sitting governors and other high-ranking public officials accused of corruption is essential for the flow of investigation which is allowed under section 308. The investigation is pointless without the freezing of the account.”
“Specifically, article 30 of the UN Convention against Corruption entrenches a functional notion of immunity; that is, it attaches to the office and not the office holder. Under article 30, states are required to ensure that immunity of public officials is not used as a ploy to frustrate prosecution of cases involving other persons such as Dazuki, accused of corruption. SERAP believes without the freezing of the accounts of Fayose by the EFCC, the investigation and adjudication of corruption and money laundering allegations involving the former National Security Adviser may be undermined, which will directly violate article 30 requirements.”
“Similarly, article 31 of the convention covers the ‘what’ and not the ‘who’. It allows states to take measures to identify, trace, restrain, seize or freeze property that might be the object of an eventual confiscation order. One such measure provided for under the provision is to ensure that anticorruption bodies such as the EFCC can adopt provisional measures including freezing of assets involved in suspicious transaction reports, at the very outset of an investigation.”
“According to the UN Technical Guide on the interpretation of the convention, ‘to be effective, restraint, seizure or freezing measures by anticorruption agencies should be taken ex parte and without prior notice. Where judicial authorization is required, the procedure should be fashioned in such a manner as not to delay the authorization and frustrate the procedure. The Guide also provides that ‘under an administrative freezing system, the agency receiving the suspicious report is empowered to decide upon a provisional freezing, and its decision is subject to judicial confirmation. In automatic freezing, the gatekeeper is obligated to freeze the assets involved in the transaction at the time of reporting, without tipping off its client, and for a short period of time within which a competent authority must decide whether to keep the assets frozen or not. In both cases, the decision is moved forward in order to increase efficiency and allow for timely freezing.’”
“The objective of this in rem procedure of freezing is a temporary immobilization of any account pending investigation into allegations of corruption cases. Freezing of accounts only covers the rem and is different from confiscation which is linked to the conviction of a defendant that could only be adopted in personam. Article 30 and 31 provisions are clearly binding on Nigeria. This is in keeping with the general principles of international law, as provided under customary international law and articulated in the Vienna Convention on the Law of Treaties 1969, which provide that a state cannot invoke domestic law as a defense for failing to implement an international obligation.”
“Immunity shouldn’t be available to bar effective investigation of corruption cases including freezing of accounts because such cases are entirely unrelated to the legitimate exercise of constitutional powers by public officials covered under section 308. Immunity doesn’t mean impunity and a licence for serving high-ranking public officials including governors to imply that they are untouchable in cases of allegations of corruption against them. In several cases, the Supreme Court of Nigeria has made it clear that immunity under section 308 is not absolute and does not bar investigation of serving high-ranking public officials such as Governor Fayose, including relating to allegations of corruption. International and regional courts have also circumscribed the application of immunity in corruption matters.”
“SERAP notes that apart from the UN Convention against Corruption, the African Union Convention on Preventing and Combating Corruption which Nigeria has ratified also includes mandatory provisions requiring states to restrict the scope of application immunity for public officials in corruption matters. The Commowealth has also urged member states to commit themselves to take active steps to ensure the removal of immunity in corruption cases. As provided by the UN through the Technical Guide to the UN Convention against Corruption, article 30 of the convention allows for sanctions which take into account the gravity of allegations of corruption and requires states to strike an appropriate balance between immunity of public officials and the need to tackle corruption and achieve effective law enforcement.”
“Article 30 even provides for the reversing of burden of proof in order to facilitate the determination of the origin of proceeds of corruption. This is different from a reversal of the burden of proof regarding the elements of the offence which is directly linked with the presumption of innocence.”
“The spirit of the 1999 constitution as reflected in chapters 3 and 4 include the prevention of corruption and promotion of transparency, accountability, the rule of law, and good governance. The chapters establish standards of conduct for the correct, honourable and proper fulfilment of public functions. Clearly, these principles are the very antithesis of high-level official corruption. SERAP therefore believes that the Fayose case provides an important opportunity for the Attorney General of the Federation and Minister of Justice Abubakar Malami to approach the Supreme Court to test the scope of application of section 308 in corruption matters in light of international consensus and gravity and consequences of high-level official corruption in the country.”
“It’s very unlikely that in the current situation of our country the Supreme Court will extend the application of section 308 to grand corruption cases. It would be inconsistent and incompatible with the letter and spirit of the constitution and the principles it entrenches if serving senior public officials suspected of corruption are able to use section 308 to shield themselves from criminal liability. It would amount to a travesty of justice for section 308 to be interpreted in a manner that will render sitting governors and other high-ranking public officials effectively above and beyond the reach of the law.”
“SERAP also notes the EFCC Report on the investigation of 31 former governors while in office, which was presented to the National Assembly in 2006 by the former Chairman of the EFCC, Mr Nuhu Ribadu. The Report, which was accepted and adopted by the National Assembly, documented the cases and indictments against the former governors. SERAP reiterates its call to Mr Malami to take steps to take over the cases and prosecute all 31 former governors suspected of official corruption while in office.”
SERAP also sent a request to the Speaker of the House of Representatives Yakubu Dogara urging him to “urgently refer to the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and other Related Offences Commission (ICPC) for an effective and independent investigation the allegations that the leadership of the House attempted to pad this year’s budget to the tune of N40 billion and that the member who blew the whistle was victimized for opposing immunity for principal officers.”
SERAP’s call followed allegations by the immediate past Chairman of the House Committee on Appropriations, Abdulmunin Jibrin, that Speaker Yakubu Dogara and three other principal officers of the House victimized him for refusing to support immunity for presiding officers as well as the approval of N40 billion for principal officers out of N100 billion approved for members of the House for constituency project.
SERAP’s request reads in part: “Given the seriousness and gravity of the allegations against the leadership of the House, any investigation by the House would not be enough, as this would not meet the threshold of an effective, transparent and independent investigation. Nigerians won’t have confidence in the House investigating itself in this case. Referring the allegations to both the EFCC and the ICPC for a joint investigation would show that the House leadership is willing and able to enhance the transparency and accountability of its system and that of the National Assembly as a whole.”
“The Speaker must now move swiftly to refer the allegations to the EFCC and the ICPC to allow for a swift, transparent, effective and independent investigation in order to contain the damage that is already done, but also not to create the impression of a cover up. There must be full accountability for any leader or member of the House found to be responsible for corruption and abuse of office. These allegations also raise numerous questions about the need for greater level of transparency and accountability in the National Assembly, such as telling Nigerians the salaries and allowances of Senators and members of the House; public auditing of spending by the National Assembly, and why severalconcluded reports on allegations of corruption that have been investigated by the National Assembly remain shrouded in secrecy and skewed to favour suspected corrupt officers.”
“SERAP also urges the leadership of the House to publicly commit that the House will not promote constitutional amendments on immunity for its principal officers. No matter how it’s framed, no public interest is served by the National Assembly seeking to grant its principal officers immunity that wasn’t contemplated by the framers of the 1999 Constitution. It’s absolutely important that members of the National Assembly–the Senate and House of Representatives–conduct themselves at all times in the knowledge that their role is a public one; appearances of propriety can be as important as actual conflicts of interest in establishing what is acceptable behaviour.”
“SERAP also urges Mr Dogara to use the opportunity of addressing the allegations raised against the leadership of the House to propose a bill on members’ integrity, which we strongly believe would help to restore public confidence in the National Assembly; provide a check against corruption; and protect the leadership of the House and Senate from claims and criticisms of self- interest. Legislators are fiduciaries in terms of acting with honesty, integrity and the utmost good faith in the public interest. The oath of office sworn by members of National Assembly at the beginning of every term also sets a clear evidence of their fiduciary duty that they must be faithful to the constitution and commit themselves to the greatest happiness of the greatest number.”