Much ado about asset declarations of public officers

The Nigerian 1999 constitution seeks to prevent corruption, and abuse of office through its provisions on the declaration of assets by pubic officers. According to the law, public officers are to declare only those Assets/Liabilities they actually own at the material time of filling the form. All properties/assets acquired outside Nigeria must be stated clearly with the value of the said Assets in the Currency of the Country where the property is situated. Although, the public declaration law doesn’t compel a public officer to declare his or her assets public, the spirit and the intent of the law on asset declaration was created to make room for public scrutiny of assets declared by public officials.

This is clearly expressed but with some shortfalls in the provision of the paragraph 3 (c) of the Third Schedule, Part 1 of the 1999 Constitution of the Federal Republic of Nigeria, as amended, which provides that the Code of Conduct Bureau (CCB) shall make assets declarations of public officers available for inspection by any citizen of Nigeria only on terms and conditions prescribed by the National Assembly. However, Lagos based rights group, Socio-Economic Rights and Accountability Project (SERAP), recently stirred up the hornets’ nest, when it demanded that President Muhummadu Buhari, Vice President, Yemi Osinbajo, and the 36 States’ governors publish their assets. SERAP in a suit filed at the Federal High Court, Abuja, urged the court to compel President Buhari, Professor Yemi Osinbajo, 36 governors and their deputies to “make public details of their assets, specifically property and income, contained in their asset declaration forms submitted to the CCB since assuming office.”

In the suit number FHC/ABJ/CS/65/2020, the group sought for “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; disclose whether they have had any reason to review and update their asset declarations submitted to the CCB, and if the declarations have been made as constitutionally and statutorily required.”

It also sought “an order to compel President Buhari, Vice-President Osinbajo, 36 state governors and their deputies to disclose whether they have received any confirmation of the verification of their asset declarations by the CCB and to disclose whether they have taken any steps to encourage members of their cabinet to also submit their asset declarations to the CCB, and to make such declarations public.” The suit followed SERAP’s Freedom of Information (FoI) requests dated January 3 2020, expressing concern that: “The non-public disclosure by public officials of their summary of assets undermines the effectiveness and integrity of the constitutional and statutory 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.” According to SERAP, only two states, Lagos and Niger responded to its FoI requests, they however, declined the requests to make public the assets of their governors and deputies, on the ground that “the FoI Act is inapplicable to state governments, their agencies and officials, and that only houses of assembly of states are constitutionally empowered to make laws on public records of states. Reacting to SERAP’s FoI request to President Buhari, Special Adviser to the President on Media and Publicity, Mr. Femi Adesina said: “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.”  Although, a Federal High Court sitting in Lagos had on Monday, May 11, 2020, dismissed the application filed by SERAP seeking “an order of mandamus to direct and 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.” Trial judge, Justice Muslim Hassan, who declined the prayers, held: “I agree with the CCB that the duty to make the asset declaration form of public officers available is dependent upon the terms and conditions to be proscribed by the National Assembly. The terms and conditions must be specific and related to asset declaration of public officers and not legislation of general nature such as, the Freedom of Information Act.”

But SERAP in an appeal contended that, “The learned trial judge misinterpreted the provision and purport of paragraph 3[c], Third Schedule, Part 1 of the 1999 Nigerian Constitution (as amended). The judge, the group said, did not consider that the Freedom of information was enacted by the National Assembly in 2011 to grant public access to public documents.” SERAP also argued that, “The learned trial Judge erred in law by holding that the Freedom of information Act is a legislation of general nature in relation to public access to asset declaration forms of public officers. The judge erred in law when he held that SERAP’s application ‘is unmeritorious and it is accordingly dismissed.” The group further contended that, “the learned trial judge failed to apply the provisions of Article 9 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria 2004, which allows access to public documents to the facts of this case.”

According to SERAP, “The failure or refusal by the CCB to provide the information requested by SERAP constitutes a violation of their right to freedom of information guaranteed by Article 9 of the African Charter on Human and Peoples’ Rights. It is noteworthy that most Nigerians who sought for information on asset declared by public officials have been referred back to the section of the law that requires the National Assembly to provide the conditions for accessing declared assets. The president’s handlers have also identified this gap in the constitution as reason the president is not bound to make his assets public. But it is on record that before he took the oath of office as the President of the Federal Republic of Nigeria on May 29, 2007, late former President Umaru Musa Yar’Adua declared his assets and liabilities of N945, 446 116 million, as required by the 1999 constitution. After about a month in office, precisely on June 28, 2007, he made his asset declaration public in fulfillment of his electioneering campaign. Records showed that he also publicly declared his assets when he was elected Governor of Kastina state in 1999.

The former president was then planning a freedom of information bill that will make it mandatory for all public officers to declare their assets publicly against the advice of CCB. Similarly, President Buhari had in 2015, as soon as he was sworn into office, declared his asset publicly. That example exhibited by the President compelled the Vice President, Yemi Osibanjo to follow suit as he also made demands on other public officials to tow the same path. It was also enough to deter those who had the intention of violating the provisions of asset declaration.  However, it is disheartening that after his re-election in 2019, President Buhari has failed to make his asset public using the gaps in the law as his soft landing. For, President Buhari, who wears the toga of  ‘African Union (AU) Anti-Corruption Champion’, and whose government came into power in 2015 on an anti-corruption mantra, it is expected that he will not have issues in subjecting himself to good leadership examples irrespective of the lacuna in the law.

He has the responsibility as a presumed anti-corruption czar, to ensure that the system is cleansed from corruption in the face of the nation’s rising corruption profile. Gladly, the president has caused the exit of the former Chief Justice of Nigeria due to some aspects of violation of the CCB law. Also, a former Senate President was subjected to rigorous trials at the Code of Conduct Tribunal as a result of some allegations on his declared assets. The assets of the above-named public officials were not made public until the case brought against them was instituted in the Code of Conduct Tribunal.  With the ripples created in the minds of many Nigerians, who saw their fate as that of political vendetta or machinations of the ruling party, it will be advantageous for the present government to create the principle of open governance where public officers knew that their assets are subject to public scrutiny and will therefore need no reminder to declare them appropriately as provided by the law.

Doing otherwise as being propagated by the president’s handlers on the asset declaration issue will amount to a dent on the fight against corruption.

If Nigeria must record another milestone in open governance, the president and his appointees, should make their asset declarations public.

Nwannekanma, wrote from Lagos.