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The Law And Public Declaration Of Assets

Posted: Jun 4, 2015 at 12:23 am   /   by   /   comments (0)

What constitute public declaration of assets in the eye of the law? Whose duty it is to publicise declared assets? Are President Muhammadu Buhari and Vice President Yemi Osinbajo err in law by not publishing their assets on the pages of the newspapers? Senior lawyers and legal groups speak on the issue and reasons behind people’s agitation for public declaration of govt officials’ assets, writes Adam Adedimeji 

Although the official declaration of assets by Nigeria’s public servants is in fulfillment of the 1999 constitution requirement, what President Muhammadu Buhari and his Vice, Yemi Osinbajo did last week in this regard was considered by many a far cry from the general expectations of the Nigerian populace. While the two foremost Nigerian citizens clearly complied with the Nigerian Constitution as contained in Chapter VI Section 140 by filing and submitting their forms, their declaration before the Code of Conduct Bureau alone however fell short of the commitment made by the duo during the 2015 campaign for elections to publicly declare their assets. This as expected has continued to draw flanks from many Nigerians especially from leading lawyers. Besides filing and submission of forms, many Nigerians expected them to publish it for them to see without having to pass trough the Code of Conduct Bureau.


What the constitution says:

Section 140, (1) of the Constitution of the Federal Republic of Nigeria 1999 provides thus: “A person elected to the office of President shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed in this Constitution and he has taken and subscribed the Oath of Allegiance and the oath of office prescribed in the Seventh Schedule to this Constitution.”

Also Section 4 of the Freedom of Information FoI Act 2011 states: “A public institution shall ensure that information referred to in this section is widely disseminated and made readily available to members of the public through various means, including print, electronic and online sources, and at the offices of such public institutions.”

Looking into the wordings of the above quoted section of the constitution, one cannot fail to notice the inexplicit nature of the provision. Apart from the fact that the section only speaks of the office of the President alone, there is no mention of how and where the declaration will take place. Not only that, the declaration was silent on whether such declaration should be announced or published by the maker. This lacuna inadvertently is what gave room to different interpretations by different people on the issue. Although they are not obligated by law to do so, many public officers have gone ‘public’ on their assets declaration. This has in turn put pressure on others to do so.

Reading through the provisions, it is discovered that the Constitution of the Federal Republic of Nigeria (1999) and the Code of Conduct Bureau and Tribunal Act only give the bureau powers to receive assets declarations, verify, examine, keep in custody and enforce compliance when there is a breach. The act of going public with it is laid bare leaving the ordinary Nigerian in quandary as to the benefit of such declaration.

Like Nigeria, there are an ever-growing number of countries who have adopted ethics and anti-corruption laws that require public officials to declare their assets and income and, increasingly, the assets and income of their spouses and dependent children. The officials who are required to declare, and the amount of detail required, vary significantly from country to country. While the requirement to declare income and assets generally is imposed by anti-corruption laws, these laws generally do not require that all of the declared information be made public and indeed most laws only require disclosure to a public agency.

The principal goal of income and asset disclosure systems is to combat corruption. In a growing number of cases, information published in asset declarations has led to the exposure of substantial unjust enrichment. Several countries with detailed disclosure requirements have experienced a decline in corruption. Among other benefits, asset disclosure programs enhance the legitimacy of government in the eyes of the public and stimulate foreign direct investment. There is now a growing trend toward requiring financial disclosure by government officials, including publication of asset declarations, in order to combat corruption, foster public confidence in government, and encourage foreign investment.


Lawyers want assets declaration publicized

Leading the pack of those calling for public declaration of assets by the President and other public officials is Socio Economic Rights and Accountability Project (SERAP), a leading right group.

SERAP, in a statement by its Executive Director, Tokunbo Mumuni, said: “We recall that the President had said before the election that he would publicly declare his assets and liabilities, and encourage all his appointees to publicly declare their assets and liabilities as a pre-condition for appointment. We now expect the President to fulfill this promise to the Nigerian people. SERAP trusts that the President and Vice President will move swiftly to publicly declare their assets and to publish widely the information on a dedicated website.”

Public disclosure of assets by the President according to DERAP “will give the general public a true picture of the assets of the President and Vice President and will send a powerful message that it is not going to be business as usual with this government. This will also follow the best practice set by former President Umaru Yar’Adua, boost this government’s fight against corruption and impunity of perpetrators, and fully comply with the provisions of chapter two of the dealing with Fundamental Objectives and Directive Principles of State Policy, which among others require the government to take steps to eradicate corrupt practices and the abuse of power”.

In his reaction, Itse Sagay SAN, a law teacher and Professor of law said it was compulsory for the president and his vice to declare their assets publicly because, “that is where credibility starts”.

“I have no doubt that he will make it public because that is where credibility starts. That is where Jonathan started losing credibility. The late Umar Yar’Adua forced him to declare his assets in 2007, reluctantly, he did it. But when he was his own man, he said he does not give a damn and that is where he started sliding down. So, Buhari has no choice, it is absolute for himself and Osinbajo if change and credibility are going to be sustained. There is no other way out, so I expect in the next 24 hours or so that we would know what their assets are. He should apply it to every other appointee of his regime, not just himself and Osinbajo, it is compulsory and absolute,” Sagay said.

Mike Ozekhome, a human rights activist and Senior Advocate of Nigeria urged President Buhari to make his declaration public in conformity with his campaign promises of breaking away from the old order. Ozekhome reminded Buhari that Nigerians now have a long memory and would watch him closely.

“I think President Buhari should realize that all the promises he made with his party, the APC constitute a check list that Nigerians are keeping closely with a biro at hand ready to tick either performed or not performed. I wouldn’t want to believe that some of the promises he made were empty words customized to get votes from Nigerians and then refrains from them later,” he said.


Is declaration to CCB, a public declaration?

Mohammed Fawehinmi, the son of fiery lawyer, Gani Fawehinmi believes it is. said the President and his Vice have complied with the constitution and that it was the duty of the Code of Conduct Bureau to make the declaration public.

Hear him, “They have done what is required by law by declaring their assets officially; it is now the duty of the Code of Conduct to make it open or published it. However, it becomes an obligation on Buhari and Osinbajo to publish their assets publicly as contained in their electoral promises. This will be the beginning of the fulfillment of their promises to Nigerians.”

Femi Falana, SAN, leading rights activist also want Nigerians to give the new leaders more time to do what is right. In the opinion of Falana, “these men just took oath of office two days ago and they declared their assets officially as required by law which stipulates 90 days. Meanwhile, they’ve promised to declare their assets publicly within 100 days. I hope it is better we wait for the 100 days.”

To Chief Emeka Ngige, an NBA stalwart and Senior Advocate of Nigeria, the president and his vice did not err in the declaration of their assets to the Code of Conduct Bureau. Ngige said: “There is nothing wrong in what the President and his vice have done. Anyone who is not satisfied with that should go to the Code of Conduct Bureau to get the information they need on the declaration. If the Code of Conduct refuses, they can invoke the Freedom of Information Act.

According to Ngige, “When President Yar’Adua did his declaration, he asked the Code of Conduct to make it public. Yar’Adua did not make his declaration public. People should desist from making noise about it because the President and his vice did the right thing. Getting information about the contents of the declaration should be done accordingly through the Code of Conduct and if it refuses, people can approach the court and the court can order the Code of Conduct to make it public.”

Abuja-based lawyer, Kayode Ajulo said the courts should be allowed to make a pronouncement on the matter. “All I know is that we Nigerians just want to be intellectually lazy. It is so clear that Buhari declared his assets, there is no fuzz about anyone declaring his assets or not. When it comes to the declaration of assets under Code of Conduct law, you have to swear to an affidavit, that affidavit is pursuant to an old act, it is called the law of federation. In that act, any oath you are making in Nigeria, it is a public declaration,” Ajulo said.


The way out

A pressure group, Say No Campaign Nigeria (SNC) has however proposed a way out of the logjam. The group in a statement by its convener, Ezenwa Nwagwu wants the Code of Conduct Bureau to uphold the requirement of Freedom of Information Act, by making information in their domain available to Nigerians who require it.

“The CCB should develop a culture of responding to requisitions forwarded to her pursuant to the Freedom of Information Act, 2010. The Code of Conduct Bureau should be reminded that she is a statutory body and a creation of law; therefore she must comply with the provisions of the law.”

The group also wants the in-coming 8th National Assembly to consider speedy passage of the Access to Public Officers Asset Declaration Bill, 2015 as well as the Whistle blowers Act before the federal parliament as it will facilitate citizens’ access to asset declarations of public officers.

Since what Nigerian Constitution seeks to prevent is corruption and abuse of office through its provisions on the declaration of assets by public officers, one of the ways to go is to make these declarations open to the public for genuine scrutiny.