Transparency in asset declaration regime still a long way ahead
The requirement for all persons taking public office to declare their assets with the Code of Conduct Bureau (CCB), as provided in the fifth schedule, part 1, section 11 (1) (b) of the 1999 constitution was designed to check corruption. But notwithstanding the assets declaration rituals, which are usually done secretly, corruption continues to thrive among public officeholders.
The fifth schedule, part 1, section 11 (1) (b) says “a public officer must submit a written declaration to the CCB of all his properties, assets, and liabilities and those of his unmarried children under the age of 18 years immediately after taking office and thereafter – (a) at the end of every four years; and (b) at the end of his term of office”. It said nothing about the public declaration, which CCB usually relies on to defend the secrecy of the declarations. It also did not talk about sharing information so declared with the public on-demand without the consent of the declarant.
Experts believe since the CCB lacks the resources to embark on a physical inspection of declared assets in the forms submitted to it by public office-holders to authenticate the claims, many assets are declared in anticipation, in the hope they would divert public funds to acquire those assets while in office.
The consequence of this lacuna is the perennial struggle by interested Nigerians to have access to the contents of the assets declaration forms submitted by public office holders to the CCB. Interested persons and groups are persistently demanding information declared to CCB by public office holders through the Freedom of Information Act (FoI) to no avail. Interestingly, civil society organisations have moved the struggle to the courts.
At the forefront of the struggle for transparency in the assets declaration regime for Nigerian public office, holders are the anti-corruption advocacy group, Socio-Economic Rights and Accountability Project (SERAP). SERAP believes that Nigerians deserve to know the specific assets declared by public office-holders so that members of the public can do their independent verification of those assets and hold the public officers to account. SERAP has called on President Muhammadu Buhari and Vice-President Yemi Osinbajo (SAN) to lead by example by publishing the content of their assets declaration forms.
In January 3, 2020, FoI request, the advocacy group urged Buhari, Osinbajo, the 36 state governors, and deputy governors to “make public details of their assets, specific properties, and incomes, contained in their asset declaration forms submitted to the CCB since assuming office.” In the FoI request made by its Deputy Director, Kolawole Oludare, SERAP said it strongly believed that “public disclosure of a summary of assets submitted to the CCB would help to uncover irregularities and trigger formal verification of declarations by the CCB and other anti-corruption agencies.” It added that public declaration of assets was “entirely consistent with government’s expressed commitment to prevent and combat corruption, provide a safeguard against abuse, and serve as an incentive to public officials to provide exact information when filing and submitting their asset declarations. Non-public disclosure by public officials of their summary of assets undermines the effectiveness and integrity of constitutional obligations to submit asset declarations, especially given that declarations are designed to curb grand corruption, and weakens the public trust in the asset declaration regimes,” SERAP insisted.
But Buhari, Osinbajo, the 36 state governors, and their deputies rebuffed the request. Niger and Lagos states, which acknowledged the receipt of SERAP’s FoI request, declined to release the requested information but contended that “the FoI Act is inapplicable to state governments, their agencies, and officials.” Reacting during a television interview to SERAP’s request, Buhari’s Special Adviser on Media and Publicity, Mr. Femi Adesina, said there was no legal basis for his principal to make his declared assets public. “SERAP asking the President to declare publicly, on the basis of what law? The President will do what the law requires of him and what the law requires is that he should declare his asset, which he has done. Declaring publicly is not in our laws; it can only be a voluntary thing,” Adesina said.
Then the struggle shifted to the Federal High Court in Lagos where SERAP filed a lawsuit marked FHC/ABJ/CS/65/2020, seeking “an order for leave to apply for judicial review and an order of mandamus to direct and/or compel President Buhari, Vice President Osinbajo, 36 state governors and their deputies to make public their summary of assets.” SERAP went further to seek a mandamus order to compel the CCB “to make available to the public, specific details of asset declarations submitted to it by successive Presidents, Vice-Presidents, Senate Presidents, Speakers of House of Representatives, state governors and their deputies since 1999.”
SERAP argued that asset declaration forms submitted to the CCB by public officers were public documents and public officers could not hide under the fundamental right to privacy to keep their assets secret, having been entrusted with the duty of managing public funds. The CCB, which contended that no law empowered it to release to the public the assets declaration forms submitted by public officers, vehemently opposed the suit. The CCB said it needed clear legislation by the National Assembly to release to the public details of declared assets by public officers.
The court, in a May 11, 2020 judgment by Justice Muslim Hassan, agreed with the CCB and dismissed SERAP’s suit. “I agree with the CCB that the duty to make the asset declaration form of public officers available depends on the terms and conditions to be prescribed by the National Assembly. The terms and conditions must be specific and related to asset declaration of public officers and not general legislation such as the Freedom of Information Act,” Justice Hassan held.
Dissatisfied, SERAP proceeded to the Court of Appeal in Lagos to challenge the verdict. In the appeal, SERAP’s Deputy Director, Oludare, described Justice Hassan’s verdict as a miscarriage of justice. He insisted that with the FoI Act, the National Assembly needed not to make any other law specifically empowering the CCB to release to the public contents of assets declaration forms by public officers.
“The learned trial judge did not consider that the National Assembly enacted the Freedom of information in 2011 to grant public access to public documents. The learned trial judge erred in law by holding that the Freedom of Information Act is legislation of general nature in relation to the public access to asset declaration forms of public officers,” SERAP said.
Oludare maintained that “asset declaration forms submitted by public officers are public documents in the custody of the CCB. The CCB is under a legal obligation to provide the information requested by SERAP under the provisions of the Freedom of Information Act, and the African Charter on Human and Peoples’ Rights.
“The learned trial judge failed to determine whether the asset declaration forms kept in the records of the CCB is public documents. The judge failed to determine whether the public interest in disclosing the information outweighs whatever injury that the disclosure would cause the CCB and public officers.” Therefore, SERAP is urging the Court of Appeal to set aside Justice Hassan’s verdict and compel the CCB to release the asset declaration forms.
Former president, Campaign for the Defence of Human Rights (CDHR), Mr. Malachy Ugwummadu, said not making assets declaration mandatorily public is one of the notorious lacunae in the Constitution of the Federal Republic of Nigeria 1999 (as amended).
According to him, the philosophy behind a declaration of assets by public office holders and their unmarried children below the age of 18 is to promote accountability and transparency in public services by empowering the public to monitor and keep a tab on the assets traceable to such a public officer within the time under review. “This cannot be possible if the declaration is just secretly made and hidden away in the archives of some obscure institutions never to be accessed by the public who may lay hold of some information about the asset (s) acquired against the declarations made,” he stated.
Ugwummadu told The Guardian that Section 14(1) of the Freedom of Information Act 2011, similarly grants exemption to public institutions including CCB from disclosing personal information in a way that justifies their decision to withhold such information.
The relevant section of Part A of the 5th Schedule to Constitution and the quoted section of the FOI Act desires some amendments to secure the objectives of those laws, he stated. “The civil society groups, particularly those focused on public transparency and accountability must step up the campaigns and sensitization with even greater litigations to the point where the judiciary will apprehend the crucial need for public participation in public accountability,” he declared.
Also commenting on the issue, Mr. Adeyinka Olumide-Fusika (SAN) described it as “a false dilemma.” According to him, it became a false dilemma after passage of the Freedom of Information Act. The CCB, he noted, was on solid ground when, before passaging the Act, it held the view that it could not disclose such declarations to the public (or third-parties). Olumide-Fusika said: “But there is the right now granted by the Act to citizens’ access to information from government and its institutions. I hold the view that the Declaration of Asset to CCB by a public official is within the category of information, which a citizen may request to know or have.”
For Lagos lawyer, Mr. Chris Okeke, the claim by CCB that it cannot disclose such information is like trying to hide behind one’s fingers. “It does not avail them. For a start, both bodies are public bodies, created by public law, run and administered by public law. They run on public funds and answerable to other public bodies. Their function is to keep public records. How have they achieved their objectives if the public records they keep from the public are not made available to the public subject only to the payment of some prescribed nominal fees?” He asked.
Whatever the situation, except the appellate courts, upturn the decision of the lower court and hold that the CCB must make such assets declarations public on request, the only option available to Nigerians is for the National Assembly to amend the relevant sections of the constitution to accommodate citizens’ quest for accountability and transparency in public office, or in the alternative, new legislation to that effect.
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