Lawyers split on suit against Code of Conduct Bureau

SERAP seeks judicial review, compelling order against agency

Lawyers and rights activists yesterday rejected claims by the Code of Conduct Bureau (CCB) that disclosing details of asset declarations submitted to it by successive presidents and state governors since 1999 would offend the right to the privacy of the affected officials.

They said public interest in the disclosure of the details of asset declarations outweighs any claim of protecting the privacy of presidents and state governors as they are public officers entrusted with the duty to manage public funds.

Last week, the CCB had refused a Freedom of Information ( FoI) request by rights group, Socio-Economic Rights and Accountability Project (SERAP), saying: “Asset declaration form is private information.”But SERAP on Friday filed a lawsuit at the Federal High Court, Lagos, against the CCB. In the suit marked: FHC/L/CS/1019/2019, it argued: “Asset declarations of presidents and state governors submitted to the CCB are public documents.”

It said the CCB has an obligation to proactively keep, organise and maintain all information or records about their operations, personnel, activities and other relevant or related information or records in a manner that facilitates public access to such information or record.

“Given that many public officers being tried for or convicted of corruption are found to have made a false declaration of their assets, the CCB should no longer allow politicians to undermine the sanctity and integrity of the asset declaration provisions of the constitution by allowing them to continue to exploit legal gaps for illicit enrichment.”

Reacting to this, Lagos lawyer and president, Committee for the Defence of Human Rights (CDHR), Malachy Ugwummadu, said, although the law requires asset declaration by public officials, it does not specify that it will be made public.

He said: “Making it public is desirable in the context of our political situation. But it is not what the law says. But in the event that a civil society group or public interest organisation decides to seek the details of such declarations for either research purposes or others, in that regard, CCB is obligated under the law to avail them. But again, not to go and publish but to avail the organisation that seeks it the same information.

“That becomes a different situation activated by the FoI Act. But as far as the CCB and CCT is concerned, what a public servant or public officer holder is required to do is go to the bureau and declare the assets and have evidence that it has been done.”

Ugwummadu said the CCB would not be said to have offended the privacy law, if SERAP comes through the FoI Act.“I am aware of what the exemptions are. For instance, if it affects security or a matter that is already before the public. If it does not fall within these, CCB is obligated to give them the information or they will activate the provision of the FoI Act by approaching the law court, which is what SERAP has done in this regard.”

Another lawyer and former director of Constitutional Watch, Aham Njoku, said the information requested from the CCB amounts to public information because the essence of the law is to ensure that those who occupy public offices are accountable to the people.

According to him, Section 14 (2) of the Freedom of Information Act 2017 provides that “a public institution shall disclose any information that contains personal information if the individual to whom it relates consents to the disclosure; or

the information is publicly available.”

“It is my view that since this law was promulgated to achieve accountability and transparency in government, it will be keeping to the spirit behind Section 14 (2) (b) of the law that a request by SERAP for the disclosure of assets of public officers or politicians lodged with the CCB ought to be complied with,” he said.

But a learned Senior Advocate of Nigeria (SAN), Chief Mike Ahamba, had a different view on the matter. He insisted that there should be a distinction between what is public and not. The learned silk said there is nothing public about an asset declaration document.

“What is public interest about that? If somebody has doubt about it, he should go and report to the appropriate authorities and during trial, he will hear them all. But to go fishing and searching people’s private life in the name of FoI Act is to carry the Act to its possible nullity, in view of its collision with the constitution,” he said.

In the suit, SERAP is seeking an order granting it leave to apply for judicial review and seek an order of mandamus directing and compelling the respondent to compile and make available to the applicant information on specific details of asset declarations submitted to the CCB by successive presidents, vice presidents, senate presidents, speakers of Houses of Representatives, state governors and deputy governors from 1999 to 2019, and to publish widely including on a dedicated website, any such information.

The group, among other reliefs, also sought an order granting it leave to apply for judicial review and seek an order of mandamus directing and compelling the respondent to compile and make available to it information on the number of asset declarations so far verified by the CCB and the number of those declarations found to be false and deemed to be in breach of the Code of Conduct for Public Officers by the bureau and to publish widely including on a dedicated website, any such information.

According to SERAP, “A necessary implication of the rule of law is that a public institution like the CCB can only act in accordance with the law. To do otherwise may enthrone arbitrariness. The CCB does not have reasonable grounds on which to deny SERAP’s FOI request, as it is in the interest of justice, the Nigerian public, transparency and accountability to publish details of asset declarations by presidents and state governors since the return of democracy in 1999.”

SERAP also argued: “Disclosing details of asset declarations of public officers such as presidents and state governors would improve public trust in the ability of the CCB to effectively discharge its mandate. This would in turn put pressure on public officers like presidents and state governors to make voluntary public declaration of their assets.”

The suit filed by SERAP’s counsel, Adelanke Aremo, reads in part: “The right to receive information without any interference or distortion 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. It is a settled principle of law that details such as asset declarations of presidents and governors should be disclosed if there is an overriding public interest in having access to such information, which is clearly so in this matter.

“Democracy cannot flourish if governments operate in secrecy, no matter how much open discussion and debate is allowed. The very nature and quality of public discussion would be significantly impoverished without the nourishment of information from public authorities such as the CCB, and to guarantee the freedom of expression without including the right to know would be a formal exercise.

“While elected public officers may not be constitutionally obliged to publicly declare their assets, the Freedom of Information Act 2011 has now provided the mechanism for the CCB to improve transparency and accountability of asset declarations by elected public officers.

“Allegation of false or anticipated declarations by public officers apparently to steal or mismanage public funds is a contributory factor to Nigeria’s underdevelopment and poverty level. All efforts to get details of asset declarations by presidents and state governors have proved abortive.”

“The right to information and truth allows Nigerians to gain access to information essential to the fight against corruption, institutionalise good governance and improve citizens’ confidence in public institutions.

Persistent refusal by successive presidents and state governors to make public their asset declarations is entirely inconsistent with the letter and spirit of the 1999 Constitution, and has been particularly harmful to the country and its people, especially given the widespread evidence of grand corruption among politicians holding public offices in Nigeria.

“Sections 1, 2, 4, 7, 9, 20 and 31 of the FOI Act are clear and unambiguous, stating a clear intention to make public information such as details of asset declarations by presidents and state governors more freely available to the members of the public and a clear obligation on the part of public institutions to proactively keep proper records in a manner that facilitates public access to such information or record.

“It is a settled cardinal principle of statutory interpretation that where in their ordinary meaning the provisions are clear and unambiguous, effect should be given to them without resorting to external aid. “SERAP therefore submits that the use of the word “shall” in sections 2 and 4 of the FOI Act 2011 connotes that the provisions are mandatory and must be complied with to the extent provided by the Act.”No date has been fixed for hearing of the suit.

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