Justice Mohammed Idris of a Federal High Court in Lagos has declared that successive governments since 1999 breached the fundamental principles of transparency and accountability for failing to disclose details about the spending of recovered stolen public funds, including a dedicated website.
The court ordered the government of President Muhammadu Buhari to ensure that his government and predecessors make full account of all recovered loots.
It said Buhari’s predecessors – Chief Olusegun Obasanjo, the late Umaru Yar’Adua and Dr. Goodluck Jonathan – should make full account of the recovered stolen funds. Nigeria has recovered billions of dollars from former public office holders, including the late military Head of State, Gen. Sani Abacha.
So far, over $700 million Abacha loot had been recovered by the Swiss government and returned to Nigeria. Additional $300 million is being expected.
The government of Liechtenstein, sometime ago, returned $227 million while government of the Channel Islands returned 140 million pounds sterling in the first instance and another 315 million pounds in a subsequent repatriation from the Abacha loot.
The management of the recovered loots had been shrouded in secrecy by the successive governments with allegations of mismanagement of the stolen funds.
The judgement came following a Freedom of Information suit marked, FHC/ IKJ/CS/248/2011, initiated by a group, the Socio-Economic Rights and Accountability Project (SERAP).
The details ordered by the court to be disclosed include: Information on the total amount of recovered stolen public assets by each government; the amount of recovered stolen public assets spent by each government, as well as the objects of such spending and the projects on which such funds were spent. Justice Idris dismissed all the objections raised by the Federal Government and upheld SERAP’s arguments.
Consequently, the court entered judgement in favour of SERAP against the Federal Government as follows: “A declaration is hereby made that the failure and/ or refusal of the respondents to individually and/ or collectively disclose detailed information about the spending of recovered stolen public funds since the return of civil rule in 1999, and to publish widely such information, including on a dedicated website, amounts to a breach of the fundamental principles of transparency and accountability and violates Articles 9, 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
“A declaration is hereby made that by virtue of the provisions of Section 4 (a) of the Freedom of Information Act 2011, the 1st Defendant/Respondent is under a binding legal obligation to provide the Plaintiff/Applicant with up-to-date information on the spending of recovered stolen funds, including: *Detailed information on the total amount of recovered stolen public assets that have so far been recovered by Nigeria.
*The amount that has been spent from the recovered stolen public assets and the objects of such spending. *Details of projects on which recovered stolen public assets were spent. An order of mandamus was also made directing 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.
At the hearing of the matter, the Federal Government, through its counsel, Sheba Olugbenga, filed a Notice of Preliminary Objection dated March 26, 2012.
In it, government contended that SERAP lacked the locus standi to institute the action. It was further argued that the action was statute barred and that SERAP’s affidavit evidence offends the provisions of the Evidence Act.
The Federal Government was also of the view that the Freedom of Information Act, having been enacted in 2011, does not apply to spending by governments since 1999. In its response, SERAP argued that the FOI Act is a special specie of legislation to liberalise and expand access to information for all Nigerians and that it does not impose any requirement of locus standi on applicants.
SERAP, while arguing that it is not caught by the law against retroactivity, noted 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 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.”
The organisation also argued that the information requested relates to the spending on recovered stolen funds since the return of civilian rule in 1999 and that 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.
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