SERAP tackles Buhari over alleged N6 trillion NDDC graft

For his failure to publish the names of those indicted in the alleged misappropriation of over N6 trillion in the running of the Niger Delta Development Commission (NDDC), the Socio-Economic Rights and Accountability Project (SERAP) has sued President Muhammadu Buhari at the Federal High Court, Abuja.

In a suit marked FHC/ABJ/CS/1360/2021 SERAP is seeking “an order of mandamus to direct and compel President Buhari to publish the names of those indicted in the alleged misappropriation of over N6 trillion in the running of the NDDC between 2000 and 2019.”

The suit, which has Attorney General of the Federation and Minister of Justice Abubakar Malami (SAN) as the second respondent, has been assigned to Justice Binta Nyako.

SERAP is also seeking “an order of mandamus to compel President Buhari to direct Malami and appropriate anti-corruption agencies to bring to justice anyone suspected to be responsible for the missing N6trillion, and to fully recover any stolen public funds.”

It said in its application: “It is in the public interest to promptly publish the names of those indicted in the audit report, and to ensure that they face prosecution, as appropriate.

“The public interest in publishing the names of those indicted by the audit report 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.

“The Buhari administration has legal obligations under Section 15(5) of the Nigerian Constitution 1999 (as amended) to abolish all corrupt practices and abuse of power, and article 26 of the UN Convention against Corruption to ensure effective prosecution of allegations of corruption.

“The audit report raises prima facie evidence of grand corruption and its staggering effects in the Niger Delta.

“Nigerians have the right to know the names of those indicted and other details in the report, as guaranteed under the African Charter on Human and Peoples’ Rights and the Freedom of Information Act.”

SERAP is also arguing that publishing widely the report and the names of those indicted would remove the possibility of obstruction of justice, and provide insights relevant to the public debate on the ongoing efforts to combat grand corruption and the longstanding impunity of perpetrators in the country.

The applicant is also seeking “an order of mandamus to direct and compel President Buhari to “widely publish and make available to Nigerians the Forensic Audit Report on the NDDC submitted to him on September 2, 2021.”

SERAP, in the suit filed by its counsels, Kolawole Oluwadare and Opeyemi Owolabi, told the court that Nigeria has made legally binding commitments under the United Nations Convention against Corruption to ensure transparent management of public resources, and unhindered access to public information.

It argued: “These commitments ought to be fully upheld and respected. Directing and compelling President Buhari to publish the names of those indicted in the report would advance the victims’ right to restitution, compensation and guarantee of non-repetition, as well as improve public confidence in the fight against corruption.

“Publishing the names of those indicted would be entirely consistent with Nigeria’s constitutional and international anti-corruption commitments.

“Combating the corruption epidemic in the NDDC and reining in those indicted would alleviate poverty, improve access of Nigerians to basic public goods and services, and enhance the ability of the government to meet its human rights and anti-corruption obligations.”

The applicant contends that despite the country’s enormous oil wealth, ordinary Nigerians have derived very little benefit from trillions of naira budgeted for socio-economic development in the region, primarily because of widespread grand corruption, and the entrenched culture of impunity of the perpetrators.

It added that Nigerians were entitled to the right to receive information without any interference or distortion, and the enjoyment of this right should be based on the principle of maximum disclosure, and a presumption that all information is accessible subject only to a narrow system of exceptions.

“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 any perceived harm.

“The missing N6 trillion and over 13,000 abandoned projects in the Niger Delta have continued to have a negative impact on the human rights of Nigerians, undermining their access to basic public goods and services, such as education, healthcare, and regular and uninterrupted electricity supply.

“Public schools have been left to crumble and wither away, and health care facilities in several parts of the region lack even the most basic of amenities,” SERAP stated.

The group is therefore, praying for an order granting it leave to apply for judicial review to enable it seek an order of mandamus compelling the President to direct the AGF to widely publish the names of those indicted in the alleged misappropriation as documented in the recently submitted Forensic Audit Report.

It is also praying for an order granting it leave to apply for judicial review to enable it seek an order of mandamus compelling President Buhari to direct Malami and appropriate anti-corruption agencies to promptly bring to justice anyone suspected to be responsible for the missing N6 trillion, and to ensure the full recovery of any misappropriated public funds.

SERAP, in an affidavit deposed to by its Administrative Officer, Joel Ekong, swore that due to reports of the widespread corruption in the NDDC, the President, through the Federal Executive Council, authorised the constitution of a forensic audit team.

The team, it said, comprised 16 Field Audit Firms and a Lead Forensic Auditor with a mandate to carry out forensic audit covering a total of 13,777 contracts awarded from 2001 to 2019 at a final contract value of over N6 trillion, to ensure probity and accountability in the use of public funds.

The deponent recalled that the forensic auditors concluded the audit assignment and submitted the report to the President through the AGF on September 2, 2021.

“The forensic audit report on the NDDC is yet to be published or made public. It is a public document.

“In the pursuit of its mandate, and in accordance with the expectations of the respondents as various Nigerian laws and treaty obligations to which Nigeria is a state party, the applicant wrote a letter dated 25th September, 2021 to the first respondent, copying the second respondent,” he averred, adding that on account of those, the applicant requested that the first respondent exercise his statutory powers as President to the publication of the names of those indicted as well as to prosecute and recover all misappropriated funds.

SERAP stated that since the receipt of the letters by the respondents and up till the filing of this suit, the first respondent has so far failed, refused and neglected to take some specific actions, which he is obligated under the law to take.

It deposed: “The first respondent has an obligation to promptly direct the investigation of the allegations of mismanagement, diversion and stealing of public funds contained in the NDDC Forensic Audit and those suspected to be responsible brought to justice in accordance with Nigeria’s anti-corruption legislation.

“This application is seeking leave to enable the applicant apply to the court to compel the 1st respondent to promptly, thoroughly, transparently and effectively direct the investigation of the allegations of mismanagement, diversion and stealing of public funds contained in the NDDC Forensic Audit Report, and those suspected to be responsible brought to justice.

“This suit is of major public interest as it bothers on issue of national interest, public welfare, public interest of human rights, social justice, good governance, transparency and accountability and is in pursuance of the applicant’s mandate as anti-corruption advocate and human rights Non-Governmental Organisation.

“The alleged corruption has hampered the ability of the NDDC as the allegedly looted public funds could have helped the government to invest in key public goods and services and to improve access of Nigerians to these services.”

SERAP further argued that the Nigeria Government has signed on to the Open Government Partnership [OGP], United Nations Convention on Anti-Corruption [UNCAC], African Union Convention on Preventing and Combating Corruption in Africa and the African Charter on Human and Peoples’ Rights and has even domesticated the African Charter as part of Nigeria’s domestic laws.

SERAP wants the court to determine whether it ought to grant the leave to enable the applicant seek judicial review and an order of mandamus, having regard to the law and factual circumstances of the case.

In its written address, the applicant argued that given the responsibility of the office and high degree of consequences of neglect, the statutory duties of the President are mandatory.

Before filing the suit, SERAP had written to the President, urging him to direct Malami to widely publish the names of those indicted in the alleged misappropriation among others.

The letter was copied to Mr Malami, Chairman Independent Corrupt Practices and Other Related Offences Commission (ICPC) Prof Bolaji Owasanoye (SAN) and Economic and Financial Crimes Commission (EFCC) Chairman Abdulrasheed Bawa.

SERAP subsequently filed the suit following the respondents’ failure to act on it demands.

Both the court and the applicant await the respondent’s response to the suit.