8th June, 2016
Alhaji Lai Muhammed
Minister of Information
Federal Ministry of Information
Dear Alhaji Lai Muhammed,
Re: Freedom of Information Act: Request to publish names of high-ranking public officials from whom public funds were recovered
Following your recent disclosure of funds recovered from some high-ranking public officials and private individuals, Socio-Economic Rights and Accountability Project, (SERAP) is writing pursuant to the Freedom of Information Act to request you to urgently provide information about the names of high ranking public officials from whom public funds were recovered.
SERAP is a human rights non-governmental organization whose mandate include to promote and seek respect for socio-economic rights of Nigerians, and to promote transparency and accountability in the public and private sectors through human rights. On the recommendation of the DFID, SERAP was nominated for the UN civil society award in 2008. SERAP was also nominated for the Ford Foundation Jubilee Transparency Award for 2011. SERAP received the Wole Soyinka Anti-Corruption Defender Award for 2014. SERAP is also a key member of UNCAC Coalition, which is a global anti-corruption network of over 310 civil society organizations (CSOs) in over 100 countries.
Details of the recoveries, published by the Federal Ministry of Information, showed that the Nigerian government successfully retrieved total cash amount N78,325,354,631.82, $185,119,584.61, £3,508,355.46 and €11, 250 between May 29, 2015 and May 25, 2016. Also released were recoveries under interim forfeiture, which were a combination of cash and assets, during the same period: N126,563,481,095.43, $9,090,243,920.15, £2,484,447.55 and €303,399.17. Anticipated repatriation from foreign countries totalled: $321,316,726.1, £6,900,000 and €11,826.11. The ministry also announced that 239 non-cash recoveries were made during the one-year period. The non-cash recoveries are – farmlands, plots of land, uncompleted buildings, completed buildings, vehicles and maritime vessels.
While we believe that suspects generally are entitled to be presumed innocent until proven guilty by a court of competent jurisdiction, SERAP opposes blanket non-disclosure of names of high-ranking public officials from whom some of the funds were recovered.
The gravity of the crime of grand corruption, the devastating effects on the socially and economically vulnerable sectors of the population, and the fact that recovery of huge funds from high-ranking public officials entrusted with the public treasury raise a prima-facie case and therefore amount to exceptional circumstances that justify naming those high-ranking officials in the public interest.
SERAP believes that the recoveries, specifically from high-ranking public officials (and not private individuals), are matters of public interest. Publishing the names of those public officials will provide insights relevant to the public debate on the ongoing efforts to prevent and combat a culture of grand corruption and the longstanding impunity of perpetrators in the country.
SERAP argues that a confession or prima facie evidence of grand corruption and the staggering effects of grand corruption fall within the Nigerians’ right to know as guaranteed under the African Charter on Human and Peoples’ Rights and the Freedom of Information Act.
Publishing the names of public officials involved could go a long way in preventing senior public officials from turning the public treasury into a private cashbox. SERAP argues that the public interest in publishing the names of the high-ranking government officials from whom funds were received outweighs any considerations to withhold the information, as there would be no prejudice against those whose names are published as long as the information is appropriately framed and truthful.
There is a general public interest in promoting transparency, accountability, public understanding and involvement in the democratic process. While the government in some limited cases can legitimately place restrictions on the public’s right to access to certain information, attempts of the Nigerian authorities to justify the total closure of information related to the names of public officials from whom funds were recovered on the basis of “ongoing criminal investigation” and “presumption of innocence goes far beyond the limitations allowed under international law, and would promote secret recoveries.
SERAP argues that in this case Nigerians are entitled to the right to receive information without any interference or distortion, and the enjoyment of this right 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.
Law enforcement is the process by which a society secures compliance with its duly adopted rules. Enforcement is adversely affected only when information is made available which allows persons simultaneously to violate the law and to avoid detection.
The information being requested is not related to detailed investigatory activities of anticorruption agencies regarding the recoveries so far made. Similarly, the mere fact that the information being requested is related to ongoing investigation does not necessarily mean that the information could not be disclosed. In addition, governmental agency has the obligation to prove that the disclosure of the names of public officials would disrupt, impede, or otherwise harm the ongoing or pending investigations or presumption of innocence.
The best practices in international law include to the Recommendation adopted by the Committee of Ministers of the Council of Europe requires states to ensure access to government-held information even if the disclose would harm one of the legitimate interests enumerated in the Recommendation, if there is an overriding public interest in having the requested information. The Principle 4 (2) provides: “Access to a document may be refused if the disclosure of the information contained in the official document would or would be likely to harm any of the interests mentioned in paragraph 1, unless there is an overriding public interest in disclosure.”
The Recommendation list includes “the prevention, investigation and prosecution of criminal activities” as one of legitimate interests, thus providing that overriding public interest is a trump over any reason not to name the public officials concerned.
The principle that requested information should be disclosed if there is an overriding public interest in having access to information, has been reaffirmed in the Joint Declaration adopted by the three special mandates on freedom of expression, (that is, the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression). The Declaration states: “The right of access should be subject to a narrow, carefully tailored system of exceptions …. Exceptions should apply only where there is a risk of substantial harm to the protected interest and where that harm is greater than the overriding public interest in having access to the information.”
SERAP insists that the public interest to know is greater than any other legitimate interest that the government might wish to protect. The Nigerian government has an obligation to balance whether the risk of harm to the legitimate aim (that is secrecy of ongoing corruption investigation and presumption of innocence) from disclosure of the names of public officials is greater than the public interest in accessing the information.
According to public interest test, even if the government demonstrates that the publication of the names of public officials would substantially harm a legitimate interest, it is nevertheless obliged to disclose the requested information if, as it is the case here, the public interest in disclosure is sufficient enough to overweigh the harm.
SERAP uses ‘public interest’ here not as something to satisfy the curiosity of Nigerians but the interest of society as a whole in events related to the exercise of self-government in a democratic state. This covers all matters of public concern and includes exposing misuse of public funds or other forms of corruption by public officials and debates on preventing and combating corruption in general. Therefore, the notion ‘public interest’ covers all the legitimate interests of the public, satisfaction of which is the essential prerequisite for exercising effective democratic control over governmental institutions.
SERAP also argues that Nigerians are entitled to the right to truth derived from the obligations of the government to carry out an investigation of violations of human rights and crime of corruption committed within its jurisdiction; to identify, prosecute and punish those responsible; and to ensure that victims have the simple and prompt recourse for protection against violation of fundamental rights, as well as to ensure transparency in public administration.
SERAP believes that the right to truth allows Nigerians to gain access to information essential to the fight against corruption and in turn development of democratic institutions as well as provides a form of reparation to victims of grand corruption in the country.
In general, Nigerian laws and international law recognize the legitimate interest of society in having the names of the public officials published; in knowing the truth about who exactly returned funds and under what circumstances. SERAP argues that the enjoyment of the right to truth in this case is essential to the efforts to end corruption and impunity of perpetrators.
By Section 1(1) of the Freedom of Information (FOI) Act 2011, SERAP is entitled as of right to request for or gain access to information, including information about the names of high-ranking public officials from whom public funds were recovered, and the said information is in the custody or possession of any public official, agency or institution.
By Section 4(a) of the FOI Act, when a person makes a request for information from a Public official, institution or agency, the public official, institution or agency to whom the application is directed is under a binding legal obligation to provide the applicant with the information requested for, except as otherwise provided by the Act, within 7 days after the application is received. By Sections 2(3)(d)(V) and (4) of the FOI Act, there is a binding legal duty to ensure that documents containing information about the names of high-ranking public officials from whom public funds were recovered is widely disseminated and made readily available to members of the public through various means.
The Information being requested does not come within the purview of the types of information exempted from disclosure by the provisions of the FOI Act. The information requested for, apart from not being exempted from disclosure under the FOI Act, bothers on an issue of public interest and concern, interest of human rights, social justice, good governance, transparency and accountability.
SERAP therefore requests you to provide detailed information about the names of high-ranking public officials from whom public funds were recovered. This information should show the following:
- Names of public officials from whom funds were recovered
- Circumstances under which funds were recovered
We would be grateful if the requested information is provided to us within 14 days of the receipt and /or public of this letter. If we have not heard from you by then, the Registered Trustees of SERAP shall take all appropriate legal actions under the Freedom of Information Act to compel you to comply with our request.
Abubakar Malami, SAN
the Honourable Attorney General of the Federation
And Minister of Justice.
Federal Ministry of Justice
Shehu Shagari Way,
Federal Capital Territory, Abuja