The Code of Conduct Bureau (CCB) has asked the Federal High Court, sitting in Lagos, to declare as unconstitutional and, therefore, void the Freedom of Information (FoI) Act.
The bureau, in a response to a suit filed by the Socio-Economic Rights and Accountability Project (SERAP), seeking an order of court to compel the CCB to release public officials’ asset declaration forms, called upon the court to annul the legislation the group relied upon to make its demand.
SERAP had earlier written CCB to release to it the asset declaration forms of President Muhammadu Buhari and Vice President Yemi Osinbajo.
It made the request after the bureau released the asset declaration form of the immediate past Chief Justice of Nigeria, Justice Walter Onnoghen, to a civil society group, Anti-Corruption and Research Based Data Initiative, which had petitioned the CCB, accusing the former CJN of false asset declaration.
However, besides seeking the nullification of the FoI Act, CCB is also asking the court to dismiss SERAP’s suit, saying that it is not under obligation to release asset declaration forms of public officials to the public.
It argued that except Buhari and Osinbajo give their consent to release their asset declaration forms, it would not oblige any request to make them public.
In its written address opposing SERAP’s suit, filed on its behalf by Musa Usman and Fatima Ali, the CCB stated; “The asset declaration forms of the presidents, vice presidents, Senate presidents, speakers of the House of Representatives, state governors and deputy governors since the return of democracy in 1999 to 2019 are in the custody of the CCB. But the public officials have not consented to the disclosure of their asset declarations forms.”
The CCB’s response dated October 14, 2019, read in part: “The CCB is not obligated to submit assets declaration forms to any person. The forms are not publicly available. SERAP has not shown that it is in the public interest to disclose the information nor that such public interest overweighs the protection of the privacy of the presidents, vice presidents, Senate presidents, speakers of the House of Representatives, state governors and deputy governors since 1999 to 2019.”
It stated that asset declaration forms contained personal information about public officials and their properties, assets and liabilities and those of their wives/husbands and their children who were under the age of 18 years.
The bureau added that it was not obligated to make available information relating to verification, which it said was an investigation activity to any citizen or institution.
It stated: “The provision of Freedom of Information Act relating to release of asset declaration forms is in open confrontation with the Constitution of Nigeria and therefore void. The constitution is the supreme law of the land and any law that is inconsistent with it shall to that extent be null and void.
“The power of the CCB to refer suspects to the Code of Conduct Tribunal is discretionary and the courts are circumspect in granting mandamus in respect of discretionary powers and in the circumstances of the case, SERAP has an alternative and effective legal remedy. This renders SERAP’s case incompetent.”
CCB said SERAP ought to have asked the CCB to investigate allegations of non-compliance with the Code of Conduct and where appropriate refer the matter to the tribunal for prosecution.
“SERAP has failed to show that it has sufficient legal interest in the matter,” it added.
The bureau said asset declaration forms were special documents that have been exempted by section 14 of the Freedom of Information Act, the same statute it said was unconstitutional.
Another objection raised by the bureau is that, “CCB can only make the forms available on the terms and conditions to be prescribed by the National Assembly. Those terms and conditions are yet to be prescribed.”
SERAP Wins First Round in Disclosure Battle
The trial judge, Justice Muslim Sule Hassan, had earlier ruled that “Going through the application filed by SERAP, supported by a 14-paragraph affidavit, with supporting exhibits, statements setting out the facts, verifying affidavits and written address in support, I am satisfied that leave ought to be granted in this case, and I hereby grant the motion for leave.”
Justice Hassan had granted the order for leave following the hearing of an argument in court on ex-parte motion by SERAP counsel, Adelanke Aremo.
The suit, filed in June followed the CCB’s claim that it could not disclose details of asset declarations submitted to it by successive presidents and governors since 1999 because doing so “would offend the right to privacy of presidents and state governors.”
In the suit, SERAP is applying for judicial review and to seek an order of mandamus directing and compelling the CCB to disclose details of asset declarations of all presidents and state governors since 1999.
“Asset declarations of presidents and state governors submitted to the CCB are public documents. Public interest in disclosure of the details of asset declarations sought by SERAP clearly outweighs any claim of protection of the privacy of presidents and
state governors, as they are public officers entrusted with the duty to manage public funds, among other public functions.
“A necessary implication of the rule of law is that a public institution like the CCB can only act in accordance with the law, as to do otherwise may enthrone arbitrariness,” SERAP said in an averment.
It contended that CCB did not have reasonable grounds on which to deny its FoI request, as it was in the interest of justice, the Nigerian public, transparency and accountability to publish details of asset declarations by presidents and governors since the return of democracy in 1999.
The organisation said disclosing details of asset declarations of public officers such as presidents and governors would improve public trust in the ability of the CCB to effectively discharge its mandate.
It said: “This would in turn put pressure on public officers like presidents and governors to make voluntary public declaration of their assets.
“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 argued that it was a settled principle of law that details such as asset declarations of presidents and governors should be disclosed if there was an overriding public interest in having access to such information, which it said was clearly so in this matter.
SERAP said: “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 freedom of expression without including the right to know would be a formal exercise.
“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.”