Tuesday, 29 March 2016

Federal High Court ruling on details of recovered fund in Nigeria

The Federal High Court, Lagos has insisted on enforcement of the judgment ordering the government of President Muhammadu Buhari to publish widely the spending of recovered stolen funds since the return of democracy in 1999.

The details of the judgment are contained in the certified true copy sent by the Socio-Economic Rights and Accountability Project (SERAP to Abubakar Malami (SAN), Attorney-General of the Federation and Minister of Justice.

The 69-page judgment, dated March 24, 2016 and signed by Justice Mohammed Idris, reads in part: “Transparency in the decision making process and access to information upon which decisions have been made can enhance accountability.”


“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 a desideratum to good governance and respect for the rule of law. In a constitutional democracy like ours, this is meant to be the norm.”

“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.”

In its letter to Mr Malami, SERAP asked the minister 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 “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,” the organisation also said.

The organisation said “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.

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:

(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

 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

The Federal High Court, Lagos has insisted on enforcement of the judgment ordering the government of President Muhammadu Buhari to publish widely the spending of recovered stolen funds since the return of democracy in 1999.

The details of the judgment are contained in the certified true copy sent by the Socio-Economic Rights and Accountability Project (SERAP to Abubakar Malami (SAN), Attorney-General of the Federation and Minister of Justice.

The 69-page judgment, dated March 24, 2016 and signed by Justice Mohammed Idris, reads in part: “Transparency in the decision making process and access to information upon which decisions have been made can enhance accountability.”

“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 a desideratum to good governance and respect for the rule of law. In a constitutional democracy like ours, this is meant to be the norm.”

“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.”

In its letter to Mr Malami, SERAP asked the minister 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 “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,” the organisation also said.

The organisation said “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.

Recall that the court in suit no:FHC/IKJ/CS/248/2011 entered judgment 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:

(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

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

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