Anticorruption: Why CCB should respect FOI Act

“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.” - Socio-Economic Rights and Accountability Project in a June 21, 2019 lawsuit against the Code of Conduct Bureau

Introduction

The impact of corruption on our country is palpable. It is visible in our underdevelopment in spite of our enormous natural resources. Nigeria has wasted five cycles of oil boom. Trillions of Naira are lost to thieving political office holders and their accomplices in the civil service as well as organised private sector. Dilapidating infrastructure and heightening insecurity are all byproducts of mis-governance and misappropriation of public resources.

In order to combat the scourge of corruption, successive administration had established different anticorruption agencies. Among them are the Police, the judiciary, Economic and Financial Crimes Commission, Independent Corrupt Practices and other related offences Commission, Office of Auditor General of the Federation and those of the States, Bureau of Public Procurement, Fiscal Responsibility Commission, Nigeria Extractive Industry Transparency Initiative, as well as the Code of Conduct Bureau and Code of Conduct Tribunal.

Code of Conduct Bureau and its functions

CCB was established by Section 153 (1) of the 1999 Constitution of Nigeria, as amended. Under Paragraph Three of the Third Schedule of the Constitution, CCB is empowered to carry out the following functions:

(a)  receive declarations by public officers made under paragraph 12 of Part I of the Fifth Schedule to this Constitution; (b) examine the declarations in accordance with the requirements of the Code of Conduct or any law; (c) retain custody of such declarations and make them available for inspection by any citizen of Nigeria on such terms and conditions as the National Assembly may prescribe; (d) ensure compliance with and, where appropriate, enforce the provisions of the Code of Conduct of any law relating thereto; (e) receive complaints about non-compliance with or breach of the provisions of the Code of Conduct or any law in relation thereto, investigate the complaint and, where appropriate, refer such matters to the Code of Conduct Tribunal.

These are five out of the seven responsibilities conferred on CCB by the Nigerian Constitution. Paragraph 11 of the Fifth Schedule of the Constitution stated as follows:  (1) Subject to the provisions of this Constitution, every public officer shall within three months after the coming into force of this Code of Conduct or immediately after taking office and thereafter - (a) at the end of every four years; and (b) at the end of his term of office, submit to the Code of Conduct Bureau a written declaration of all his properties, assets, and liabilities and those of his unmarried children under the age of eighteen years.

(2) Any statement in such declaration that is found to be false by any authority or person authorised in that behalf to verify it shall be deemed to be a breach of this Code. (3) Any property or assets acquired by a public officer after any declaration required under this Constitution and which is not fairly attributable to income, gift, or loan approved by this Code shall be deemed to have been acquired in breach of this Code unless the contrary is proved.

High profile personalities caught in the web

These legal provisions were put in place to check corrupt enrichment by elected political office holders. Some high profile public officials who has been dragged by the CCB to its sister agency, Code of Conduct Tribunal on the basis of alleged false asset declarations include former Lagos State Governor, Asiwaju Bola Ahmed Tinubu, immediate past Senate President, Dr. Bukola Saraki and early this year, immediate past Chief Justice of Nigeria, Walter Onnoghen. Out of the three, it was only Onnoghen that was found culpable of the allegations of false asset declaration.

According to Paragraph 18 (2) of the Fifth Schedule of the Nigerian Constitution “The punishment which the Code of Conduct Tribunal may impose shall include any of the following - (a) vacation of office or seat in any legislative house, as the case may be; (b) disqualification from membership of a legislative house and from the holding of any public office for a period not exceeding ten years; and (c) seizure and forfeiture to the State of any property acquired in abuse or corruption of office.”

SERAP, CCB, and the Court

A Civil Society Organisation working on anticorruption through public interest litigation, Socio-Economic Rights and Accountability Project better known as SERAP wrote to the Code of Conduct Bureau seeking access to the asset declaration form of presidents, vice presidents, governors and deputy governors that have been in power in Nigeria since 1999. However, CCB declined the request premised on the Freedom of Information Act 2011 on the basis that “Asset declaration form is private information.” And that its disclosure will intrude on the right to privacy of the people whose asset declaration forms are being sought.

This refusal prompted SERAP to file a suit (FHC/L/CS/1019/2019) demanding the following reliefs:

AN ORDER granting leave to the Applicant to apply for judicial review and to 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 Code of Conduct Bureau by successive Presidents, Vice Presidents, Senate Presidents, Speakers of House of Representatives, State Governors and Deputy Governors from 1999 to 2019 and to publish widely including on a dedicated website, any such information.

AN ORDER granting leave to the Applicant to apply for judicial review and to seek an order of mandamus directing and compelling the Respondent to compile and make available to the Applicant information on the number of asset declarations so far verified by the Code of Conduct Bureau 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.

AN ORDER granting leave to the Applicant to apply for Judicial Review and to seek an order of mandamus directing and compelling the Respondent to immediately take cases of false asset declarations to the Code of Conduct Tribunal for effective prosecution of suspects, and include banning the politicians involved from holding public offices for at least a period of 10 years and seeking refund of stolen public funds as part of the reliefs to be sought before the Tribunal.

My argument

I am of the considered view that the refusal of the CCB to oblige SERAP of the requested information about the asset declaration forms of the aforementioned public officials is a breach of Paragraph 3 (c) of the Third Schedule which urged the CCB to:  “retain custody of such declarations and make them available for inspection by any citizen of Nigeria on such terms and conditions as the National Assembly may prescribe.” The Freedom of Information Act 2011 is a legislation of the National Assembly.

As rightly observed by SERAP, “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.”

If I may ask, how did Dennis Aghanya, the author of the petition against former Chief Justice of Nigeria Walter Onnoghen, lay hands on the asset declaration form of the former CJN? Aghanya, a former media aide to President Muhammadu Buhari is said to be the Executive Secretary of the Anti-Corruption and Research Based Data Initiative. How did those who wrote petition against Bukola Saraki and Bola Tinubu lay hands on their asset declaration forms? Perhaps it was CCB officials who discovered the discrepancy when they carried out verification exercise on the forms. However, in the case of Onnoghen, we were informed that CCB was yet to verify his asset declaration form. So who tipped off Aghanya to write that petition? What is sauce for the goose is sauce for the gander. SERAP should not have been denied access to the information being sought because as a responsible Non-Governmental Organisation, it is just  seeking  to assist CCB in doing its job  of  making public officials accountable.

Paragraph Three (e) of the Third Schedule of the Constitution says CCB shall “receive complaints about non-compliance with or breach of the provisions of the Code of Conduct.”  How can people or organisation complain when they are denied access to information filed by these public officials?

I do know that the law deliberately makes the filing of the asset declaration forms secret so that those public officials are not exposed to danger of attacks; more so in a society like ours where insecurity is now prevalent. That being said, in the interest of public accountability, it important to still make the asset declaration forms of political office holders available to responsible interested organisations willing to assist CCB to cross check the declarations.

There have been complaints that the Bureau is not well resourced to carry out its verification exercise of the assets declared by public officials. It is therefore important for it as well as other anti-corruption agencies to be well funded in order to make them more efficient. We have also had former presidents and governors who voluntarily made their asset declaration forms public. These include former President Umaru Musa Yar’Adua, ex-President Goodluck Jonathan as Vice President and incumbent President Muhammadu Buhari. This is a step in the right direction worthy of being emulated.