January 25, 2010
The Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) have dragged President Umaru Musa Yar’Adua; the Attorney General of the Federation and Minister of Justice; Accountant-General of the Federation and the Auditor-General of the Federation to the Federal High Court in Lagos over alleged failure to provide information on the spending of recovered stolen public funds.
According to the group, “the Respondents have not shown transparency, accountability and openness in the spending of recovered stolen public funds, estimated at N600 billion, by both the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and Other Related Offences Commission (ICPC).”
In the suit number FHC/L/CS/89/2010 dated 26 January 2010, and filed by SERAP’s lawyer, Adetokunbo Mumuni, the Applicant stated that, “lack of disclosure in the spending of recovered loot is aptly illustrated by the secrecy surrounding the spending of recovered funds from the late Head of State, Gen. Sani Abacha (about $1.9 billion returned); the former Inspector General of Police, Tafa Balogun (about N10 billion returned); and the former governor of Bayelsa State, Diepreye Alamieyeseigha (about $1.9 million returned).”
The suit, which is based on the new Fundamental Rights (Enforcement Procedure) Rules 2009, argues that, “the right of Nigerians to “receive” information in Article 9(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act logically imposes a legal obligation on the government to “provide”. Implicit in Article 9(1) is a responsibility on the part of the Respondents to promote and ensure openness and transparency in the spending of government, including in this case the spending of recovered stolen public funds.”
“The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transaction,” the group further argued.
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According to the group, “access to information of this nature is especially important in this country, which is struggling to establish the rule of law and democracy in the face of underdevelopment, including in the Niger Delta, continued sectarian violence, and where human rights conditions remain poor. Transparent information flows contribute towards a culture of good governance and openness and also help to develop a sense of public trust in the authorities, at the federal, state and local level.”
“Without an individual right to access information on critical spending, state authorities can control the flow of information, “hiding” material that is damaging to the government and selectively releasing information which government deems appropriate for public consumption only. In such a climate, corruption thrives and human rights violations can remain unchecked,” the suit added.
Citing international, regional and national cases and authorities, the group also argued that “the failure to disclosure this information has undermined the human rights of the Applicants and other Nigerians, including the right to take part in public affairs. Unless the Court compel the Respondents to disclose the information, the information may never be disclosed and the human rights of millions of Nigerians will continue to suffer.
Relying on Articles 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act the group also argued that “by its nature, the exercise of the state’s right to dispose of wealth and natural resources for the benefit of the people implies an obligation of fidelity on the state, thereby establishing a fiduciary relation between the state or its agents, and the citizens. Thus, implicit in the exercise of state’s right to dispose its wealth and resources is a duty not to act in any manner that would deny those rights or impair their enjoyment by the people. Such a fiduciary relation implies a generic duty to on the Respondents to ensure openness, transparency and accountability in the spending of public funds, including recovered stolen public funds.”
The suit is asking the court for the following reliefs:
A DECLARATION that the failure and/or refusal of the Respondents to individually and/or collectively carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website, is illegal and unlawful as it violates Articles 9, 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act
AN ORDER OF MANDAMUS compelling the Respondents individually and/or collectively to carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website
No date has been fixed for the hearing of the case.
Signed
Adetokunbo Mumuni
Executive Director
26/1/2010
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT LAGOS
SUIT NO: FHC/L/CS/89/2010
IN THE MATTER OF AN APPLICATION FOR THE ENFORCEMENT OF THE APPLICANT’S FUNDAMENTAL RIGHTS TO INFORMATION AND NATURAL RESOURCES & WEALTH
BETWEEN:
REGISTERED TRUSTTES OF
SOCIO-ECONOMIC RIGHTS & ACCOUNTABILITY
PROJECT (SERAP) )…. APPLICANT
AND
PRESIDENT OF THE FEDERAL REPUBLIC OF )
NIGERIA
ATTORNEY GENERAL OF THE FEDERATION )
ACCOUNTANT GENERAL OF THE FEDERATION )
AUDITOR GENERAL OF THE FEDERATION )….RESPONDENTS
ORIGINATING SUMMONS
Brought Pursuant to:
1. Order II Rules 1, 2, 3, 4, and 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009
2. Inherent Jurisdiction of the Court
TAKE NOTICE that this Honourable Court will be moved on day of 2010 at the hour of 9 O’clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the Applicant for the following reliefs:
A. A DECLARATION that the failure and/or refusal of the Respondents to individually and/or collectively carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website, is illegal and unlawful as it violates Articles 9, 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act
B. AN ORDER OF MANDAMUS compelling the Respondents individually and/or collectively to carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website
AND TAKE FURTHER NOTICE that at the hearing of this Application the Applicant will rely on the Statement, supporting Affidavit as well as the Written Address.
Dated this ……………...day of………………………2010
…………………………………
ADETOKUNBO MUMUNI ESQ
SOCIO-ECONOMIC RIGHTS & ACCOUNTABILITY PROJECT (SERAP)
4 AKINTOYE SHOGUNLE STREET OFF UNITY ROAD IKEJA LAGOS
FOR SERVICE ON:
THE DEFENDANTS
His Excellency Alhaji Umar Yar’Adua
PRESIDENT OF THE FEDERAL REPUBLIC OF
NIGERIA
Commander in Chief of the Armed Forces
Office of the President
Aso Rock
Abuja,
ATTORNEY GENERAL OF THE FEDERATION
Federal Secretariat Towers (5th & 10th floors),
Shehu Shagari Way, Central Area,
P.M.B. 192, Garki
Abuja
ACCOUNTANT GENERAL OF THE FEDERATION
C/O
ATTORNEY GENERAL OF THE FEDERATION
Federal Secretariat Towers (5th & 10th floors),
Shehu Shagari Way, Central Area,
P.M.B. 192, Garki
Abuja
AUDITOR GENERAL OF THE FEDERATION
C/O
ATTORNEY GENERAL OF THE FEDERATION
Federal Secretariat Towers (5th & 10th floors),
Shehu Shagari Way, Central Area,
P.M.B. 192, Garki
Abuja
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT LAGOS
SUIT NO: FHC/L/CS/89/2010
IN THE MATTER OF AN APPLICATION FOR THE ENFORCEMENT OF THE APPLICANT’S FUNDAMENTAL RIGHTS TO INFORMATION AND NATURAL RESOURCES & WEALTH
BETWEEN:
REGISTERED TRUSTTES OF
SOCIO-ECONOMIC RIGHTS & ACCOUNTABILITY
PROJECT (SERAP) )…. APPLICANT
AND
PRESIDENT OF THE FEDERAL REPUBLIC OF )
NIGERIA
ATTORNEY GENERAL OF THE FEDERATION )
ACCOUNTANT GENERAL OF THE FEDERATION )
AUDITOR GENERAL OF THE FEDERATION )….RESPONDENTS
STATEMENT
1. NAMES AND DESCRIPTIONS OF THE APPLICANT
The Applicant is Socio-Economic Rights & Accountability Project (SERAP); 4 Akintoye Shogunle Street, Off Awolowo Way Ikeja, Lagos Nigeria. SERAP is a human rights non-governmental organization registered under Nigerian laws, and whose mandates and objectives include the promotion of respect for socio-economic rights of Nigerians, through litigation, research and publications, advocacy and monitoring. SERAP seeks to promote the full realization of economic and social rights in Nigeria by working to ensure that public institutions and officials and non-state actors are made more accountable and transparent in the use of Nigeria’s wealth and natural resources.
2. RELIEFS SOUGHT BY THE APPLICANT
A. A DECLARATION that the failure and/or refusal of the Respondents to individually and/or collectively carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website, is illegal and unlawful as it violates Articles 9, 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act
B. AN ORDER OF MANDAMUS compelling the Respondents individually and/or collectively to carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website
3. GROUNDS FOR SEEKING RELIEFS
(i) By virtue of Articles 9, 21, and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, the Respondents are individually and/or collectively required to guarantee to the Applicant and all Nigerians the right to receive information regarding the spending of stolen public funds; the right to natural wealth and resources; and the right to development.
ii. The failure and/or refusal of the Respondents to provide information regarding the spending of public funds despite the request by the Applicant is illegal and unlawful as it violates the Applicant’s right to receive information and breaches the fiduciary relationship implied and imposed by Articles 9, 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
…………………………………
ADETOKUNBO MUMUNI ESQ
SOCIO-ECONOMIC RIGHTS & ACCOUNTABILITY PROJECT (SERAP)
4 AKINTOYE SHOGUNLE STREET OFF UNITY ROAD IKEJA LAGOS
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT LAGOS
SUIT NO: FHC/L/CS/89/2010
IN THE MATTER OF AN APPLICATION FOR THE ENFORCEMENT OF THE APPLICANT’S FUNDAMENTAL RIGHTS TO INFORMATION AND NATURAL RESOURCES & WEALTH
BETWEEN:
REGISTERED TRUSTTES OF
SOCIO-ECONOMIC RIGHTS & ACCOUNTABILITY
PROJECT (SERAP) )…. APPLICANT
AND
PRESIDENT OF THE FEDERAL REPUBLIC OF )
NIGERIA
ATTORNEY GENERAL OF THE FEDERATION )
ACCOUNTANT GENERAL OF THE FEDERATION )
AUDITOR GENERAL OF THE FEDERATION )….RESPONDENTS
AFFIDAVIT IN SUPPORT
I, Adetola Adeleke, Male, Christian, and Litigation Clerk of 4 Akintoye Shogunle Street, Ikeja, Lagos, hereby make Oath and state as follows:
1. That I am a Litigation Clerk of the Socio-Economic Rights and Accountability Project (SERAP), the Applicant in this suit.
2. That I have the consent and authority of the Applicant herein to depose to this affidavit.
3. That by virtue of my position and the fact stated in paragraph 2 hereof, I am conversant with the facts of this case and with the facts deposed to herein.
4. That the Applicant is a human rights non-governmental organization established in Nigeria and incorporated under Part C of the Companies and Allied Matters Decree, 1990. A copy of the Certificate of Incorporation of SERAP is attached herewith as Exhibit 1.
5. That the Applicant seeks to promote the inalienable and internationally recognized economic, social and cultural rights of the citizens to housing, education, health, food, work and to an adequate standard of living through litigation and other legal and constitutional means.
6. That the Applicant also works to hold government and public officials at the local, state and federal levels accountable for human rights violations, including economic, social and cultural rights; and to ensure Nigeria’s compliance with its Constitutional and international human rights obligations. A copy of the Constitution of the Plaintiff is hereby attached as Exhibit 2.
7. The 1st Defendant is the President of Nigeria and Commander-in-Chief of the Nigerian Armed Forces. The 2nd Defendant is the Attorney-General of the Federation, and as such the Chief Law Officer of the Federation. The 3rd Defendant is the Accountant-General of the Federation. The 4th Defendant is Auditor-General of the Federation.
8. The Respondents individually and/or collectively are charged with responsibility to promote and ensure respect for the fundamental rights of all Nigerians to receive information regarding the spending of recovered stolen public funds; the right to natural wealth and resources; and the right to development.
9. The Respondents individually and/or collectively also have a fiduciary responsibility to ensure the transparent and accountable spending of recovered stolen public funds
10. By a letter dated 11th June 2009, the Applicant requested the 1st Respondent, His Excellency President Umaru Musa Yar’ Adua to begin a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website. A copy of the letter is hereby attached and marked Exhibit 3.
11. In the letter to the 1st Respondent the Applicant stated as follows:
(i) Despite the Respondents’ oft-expressed commitment to the anti-corruption fight in the country, questions remain as to the government’s lack of transparency and openness in the spending of recovered stolen public funds, estimated at N600 billion, by both the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and Other Related Offences Commission (ICPC).
(ii) The Applicant’s investigation reveals strong and credible evidence to suggest that most of the recovered funds may have been re-stolen, misused or mismanaged.
(iii) The recovered N600 billion is only a paltry of over $400 billion, which the United Nations Office on Drugs and Crimes said has been stolen by generation of high level Nigerian public officials.
(iv) The Respondents’ lack of transparency, accountability and full disclosure in the spending of recovered loot is aptly illustrated by the secrecy surrounding the spending of recovered funds from the late Head of State, Gen. Sani Abacha (about $1.9 billion returned); the former Inspector General of Police, Tafa Balogun (about N10 billion returned); and the former governor of Bayelsa State, Diepreye Alamieyeseigha (about $1.9 million returned).
(v) This situation is unacceptable as it is fuelling a culture of official corruption and impunity of perpetrators in the country. High level official corruption is bleeding Nigeria to death and the cost is borne by the poor. Recovered stolen public funds have apparently not been properly spent to achieve sustainable development for Nigeria, throwing millions of Nigerians deeper into poverty.
(vi) The Respondents have a responsibility to ensure the full realization of internationally recognized economic and social rights and the right to development of all Nigerians.
(vii) The Applicant is seriously concerned that although anti-corruption agencies such as the Independent Corrupt Practices and Other Related Offences Commission (ICPC), the Economic and Financial Crimes Commission (EFCC) have recovered huge stolen public funds, there is little or no public information on the spending of the funds, contrary to Nigeria’s international anti-corruption commitments, including under the UN Convention against Corruption and the AU Convention on Preventing and Combating Corruption.
(viii) The Respondents are obligated to promote integrity, accountability and proper management of public affairs and public property, including recovered loot. Similarly, under these conventions, Nigeria is obligated to ensure the right of access to any information that may be required to assist in the fight against corruption. Indeed, the UN Conference of States Parties, a forum charged with the implementation of the UN Convention against Corruption has recognized that a transparent and accountable management of recovered stolen asset is central to the effective tackling of corruption, and to the full realization of the Convention’s provisions.
(ix) Unless the Respondents urgently undertake a proper auditing of the spending of recovered stolen public funds and widely publish the outcome of the exercise, there will be no end to the vicious circle of high level official corruption and impunity of perpetrators in the country.
11. Despite demand by the Applicant, the Respondents have failed and/or refused to carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website.
12. Unless the reliefs sought by the Applicant are granted the Respondents will not carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and will not publish widely the outcome of such auditing.
13. I make this declaration in good faith.
………………
DEPONENT
SWORN TO at the Federal
High Court Registry, Lagos
Dated this …….…day of ……………………….2010.
BEFORE ME
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT LAGOS
SUIT NO: FHC/L/CS/89/2010
IN THE MATTER OF AN APPLICATION FOR THE ENFORCEMENT OF THE APPLICANT’S FUNDAMENTAL RIGHTS TO INFORMATION AND NATURAL RESOURCES & WEALTH
BETWEEN:
REGISTERED TRUSTTES OF
SOCIO-ECONOMIC RIGHTS & ACCOUNTABILITY
PROJECT (SERAP) )…. APPLICANT
AND
PRESIDENT OF THE FEDERAL REPUBLIC OF )
NIGERIA
ATTORNEY GENERAL OF THE FEDERATION )
ACCOUNTANT GENERAL OF THE FEDERATION)
AUDITOR GENERAL OF
THE FEDERATION )…RESPONDENTS
APPLICANT’S WRITTEN ADDRESS
1. INTRODUCTION:
1.1 The Applicant, one of Nigeria’s leading human rights non-governmental organizations institutes the present case against the Respondent. The Applicant is praying the Honourable Court to compel the Respondents individually and/or collectively to carry out a transparent auditing of the spending of the over #600b (naira) recovered stolen public funds since the return of civil rule in 1999. The Applicant is also praying the Honourable Court to compel the Respondent to publish information on the spending of the recovered funds.
1.2 The Applicant contends that the failure and/or refusal of the Respondents to provide information regarding the spending of stolen public funds despite the request by the Applicant is illegal and unlawful as it violates the Applicant’s right to receive information and breaches the fiduciary relationship implied and imposed by Articles 9, 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
2. ISSUES FOR DETERMINATION
The Applicant submits that there are two issues for determination in this case which are:-
A. Whether the failure and/or refusal of Respondents to provide information regarding the spending of stolen public funds despite the request by the Applicant is not illegal and unlawful by virtue of Article 9 (providing that every individual shall have the right to receive information) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
B. Whether the failure and/or refusal of the Respondents to provide information regarding the spending of recovered stolen public funds is not a breach of the fiduciary obligation implicit in Articles 21 and 22 (providing respectively for the rights of peoples to freely dispose of their wealth and natural resources and to their economic and social development) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
3. ISSUE ONE:-
3.1 Whether the failure and/or refusal of Respondents to provide information regarding the spending of stolen public funds despite the request by the Applicant is not illegal and unlawful by virtue of Article 9 (providing that every individual shall have the right to receive information) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
3.2 In the affidavit in support of the Application, the Applicant has averred that the Respondents have not shown transparency, accountability and openness in the spending of recovered stolen public funds, estimated at N600 billion, by both the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and Other Related Offences Commission (ICPC). The need for information on the spending of the recovered stolen funds becomes especially important in the face of strong and credible evidence to suggest that most of the recovered funds may have been re-stolen, misused or mismanaged.
3.3 In order to address this issue it is pertinent to refer to Article 9(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. Article 9(1) provides that
“Every individual shall have the right to receive information”.
3.4 From the clear and unambiguous provision of Article 9(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, the Respondents are legally required to provide information to the Applicant and other Nigerians on the spending of the recovered stolen public funds over #600b. The right of Nigerians to “receive” logically imposes a legal obligation on the government to “provide”.
3.5 In this case, the Applicant has averred that the Respondents’ lack of transparency, accountability and full disclosure in the spending of recovered loot is aptly illustrated by the secrecy surrounding the spending of recovered funds from the late Head of State, Gen. Sani Abacha (about $1.9 billion returned); the former Inspector General of Police, Tafa Balogun (about N10 billion returned); and the former governor of Bayelsa State, Diepreye Alamieyeseigha (about $1.9 million returned). The Applicant has also averred that, “This situation is fuelling a culture of official corruption and impunity of perpetrators in the country. High level official corruption is bleeding Nigeria to death and the cost is borne by the poor. Recovered stolen public funds have apparently not been properly spent to achieve sustainable development for Nigeria, throwing millions of Nigerians deeper into poverty.”
3.6 The Applicant contends that the right of Nigerians to “receive” logically imposes a legal obligation on the government to “provide”. Implicit in Article 9(1) is a responsibility on the part of the Respondents to promote and ensure openness and transparency in the spending of government, including in this case the spending of recovered stolen public funds. Therefore, the failure and/or refusal of the Respondents to provide information regarding the spending of recovered stolen funds is illegal and unlawful and directly violates Article 9(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act
3.7 Access to information of this nature is especially important in this country, which is struggling to establish the rule of law and democracy in the face of underdevelopment, including in the Niger Delta, continued sectarian violence, and where human rights conditions remain poor. Transparent information flows contribute towards a culture of good governance and openness and also help to develop a sense of public trust in the authorities, at the federal, state and local level.
3.8 The right of access to information held by public bodies – often referred to as “freedom of information” or the “right to information” – is a fundamental human right recognized in international law. It is crucial as a right in its own regard as well as central to the functioning of democracy and the realization of all other human rights.
3.9 Without an individual right to access information, state authorities can control the flow of information, “hiding” material that is damaging to the government and selectively releasing information which government deems appropriate for public consumption only. In such a climate, corruption thrives and human rights violations can remain unchecked.
3.10 Developments at international, regional and national levels show that increasingly governments are seen to have a positive duty to provide information in general as well as the information necessary for the enjoyment of fundamental rights. International human rights laws and standards underpin the right of access to information.
3.11 Thus, the African Commission on Human and Peoples’ Rights (a body established to oversee the implementation of the African Charter on Human and Peoples’ Rights) has adopted a Declaration of Principles on Freedom of Expression in Africa, Principle IV of which states, in part:
“1. Public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information, subject only to clearly defined rules established by law. 2. The right to information shall be guaranteed by law in accordance with the following principles: everyone has the right to access information held by public bodies; everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right; any refusal to disclose information shall be subject to appeal to an independent body and/or the courts; public bodies shall be required, even in the absence of a request, actively to publish important information of significant public interest; no one shall be subject to any sanction for releasing in good faith information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment save where the imposition of sanctions serves a legitimate interest and is necessary in a democratic society; and secrecy laws shall be amended as necessary to comply with freedom of information principles.”
3.12 Similarly, in 2007 the African Union adopted a Charter on Democracy, Elections and Governance, which aims to “Promote adherence, by each State Party, to the universal values and principles of democracy and respect for human rights; Promote and enhance adherence to the principle of the rule of law premised upon the respect for, and the supremacy of, the Constitution and constitutional order in the political arrangements of the State Parties.” Significantly, the Charter requires African governments to “promote the establishment of the necessary conditions to foster citizen participation, transparency, access to information, freedom of the press and accountability in the management of public affairs.”
3.13 Nigeria has signed the Charter, and therefore has an obligation not to defeat the object and purpose of the Charter
3.14 Similarly, Article 19 of the Universal Declaration on Human Rights (UDHR) , adopted as a United Nations General Assembly resolution in 1948, states: “Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
3.15 While the UDHR is not directly binding on States, parts of it, including Article 19, are widely regarded as having acquired legal force as customary international law. Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which Nigeria has ratified, guarantees the right to freedom of expression and information in terms similar to the UDHR.
3.16 In 1995, the UN Special Rapporteur on Freedom of Opinion and Expression,stated: “There is now little doubt that there is growing international recognition of a general right of access to information as well as of the importance of adopting the legislative and other measures necessary to make this right effective.”
3.17 In his 1998 Annual Report, the Special Rapporteur reaffirmed that the right to information includes the right to access information held by the State: “The right to seek, receive and impart information imposes a positive obligation on States to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems….”
3.18 Furthermore, the Representative on Freedom of the Media of the Organisation for Security and Cooperation in Europe and the Special Rapporteur on Freedom of Expression of the Organisation of American States in a Joint Declaration issued in December 2004, stated: “The right to access information held by public authorities is a fundamental human right which should be given effect at the national level, based on the principle of maximum disclosure, establishing a presumption that all information is accessible subject only to a narrow system of exceptions.”
3.19 The right to information has also been explicitly recognized in the other regional systems for the protection of human rights. Within the Inter-American system, the Inter-American Commission on Human Rights approved the Inter-American Declaration of Principles on Freedom of Expression in October 2000.43 The Principles unequivocally recognize a right to access information held by the State, as both an aspect of freedom of expression and a fundamental right on its own:
“Every person has the right to access information about himself or herself or his/her assets expeditiously and not onerously, whether it be contained in databases or public or private registries, and if necessary to update it, correct it and/or amend it. Access to information held by the state is a fundamental right of every individual. States have obligations to guarantee the full exercise of this right. This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies.”
3.20 Within Europe, on 27 November 2009, the Council of Europe adopted the Convention on Access to Official Documents which opened for signature on 17 June 2009.
3.21 Even more recently, in its recent decision concerning the Hungarian Civil Liberties Union, the European Court of Human Rights recognized that when public bodies already hold information that is needed for public debate, the refusal to provide it to those who are seeking it is a violation of the right to freedom of expression and information.
3.22 These recent developments stand against the backdrop of the Committee of Ministers of the Council of Europe Recommendation on Access to Official Documents of 2002. Principle III provides generally:
“Member states should guarantee the right of everyone to have access, on request, to official documents held by public authorities. This principle should apply without discrimination on any ground, including that of national origin.”
3.23 Additionally, the Commonwealth of which Nigeria is a member has also recognized the fundamental importance of the right to information, and has taken a number of significant steps to elaborate on the content of that right. Finally, although the Arab Charter on Human Rights, adopted by the Arab League on 22 May 2004, has been criticized for its significant deficiencies as a human rights instrument, it does contain an express guarantee of the right to information.
3.24 Implementation of the right to information is also a key requirement imposed on States parties to the UN Convention against Corruption. Nigeria has ratified the Convention. Article 13 of the Convention requires that States should “[ensure] that the public has effective access to information”.
3.25 The Applicant notes that under international law, restrictions on the right to information must meet the requirements stipulated in Article 19(3) of the ICCPR:
“The exercise of the rights [to freedom of expression and information] may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.”
3.26 The requirements of Article 19(3) translate into a three-part test, whereby a public body must disclose any information which it holds and is asked for, unless: 1. The information concerns a legitimate protected interest listed in the law; 2. Disclosure threatens substantial harm to that interest; and 3. The harm to the protected interest is greater than the public interest in having the information.
3.27 The Applicant contends that the present application is not affected by the exceptions highlighted above, as there is an overriding public interest in disclosure of information on the spending of recovered stolen public funds.
3.28 Similarly, in interpreting these exceptions, the Applicant urges the Honourable Court to pay particular attention to the principles articulated in the new Fundamental Rights (Enforcement Procedure) Rules 2009, which provides among others that,
“The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any other law and whenever it applies or interprets any rule. The overriding objectives of these Rules are as follows: (a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them. (b) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. Such bills include; (i)The African Charter on Human and Peoples’ Rights and other instruments (including protocols) in the African regional human rights system, (ii)The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations human rights system, (c) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient.
3.29 Furthermore, decisions by national or regional courts have declared the public's right to information to be implicit in the rights of freedom of expression or representative democracy or both. In several countries, such as New Zealand, the presumption is that information should be made available unless a good reason exists to withhold it.
3.30 The European Court of First Instance in 1995 found in favour of a journalist working for a British newspaper, who had challenged the right of the Council of the European Union to conceal minutes of law-making meetings from the public. The Court decided that the Council’s policy of withholding information contravened a 1993 code of conduct that guaranteed European citizens "the widest possible access to documents".
3.31 In India more than 20 years ago the Supreme Court addressed the responsibility of government and urged a more open administration, stating:
The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transaction
3.32 The failure to disclosure this information has undermined the human rights of the Applicants and other Nigerians, including the right to take part in public affairs. Unless the Court compel the Respondents to disclose the information, the information may never be disclosed and the human rights of millions of Nigerians will continue to suffer.
3.33 On the basis of the above, the Applicant urges the Honourable Court to hold that the failure and/or refusal of the Respondents to provide information on the spending of recovered stolen public funds is a violation of Nigeria’s obligations under Article 9 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.
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4. ISSUE TWO
4.1 Whether the failure and/or refusal of the Respondents to provide information regarding the spending of recovered stolen public funds is not a breach of the fiduciary obligation implicit in Articles 21 and 22 (providing respectively for the rights of peoples to freely dispose of their wealth and natural resources and to their economic and social development) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
4.2 The right of peoples to freely dispose of their natural wealth and resources find legal expression in the African Charter. While this right is closely linked to the right to self-determination, and economic independence, it is different because it calls for the effective realization of a right to economic, rather than political self-determination. The origins lie in the 1962 General Assembly Resolution on Permanent Sovereignty over Natural Resources, which inspired the following language of Article 21 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act to the effect that,
All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. 2. In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation [Emphasis supplied] . 3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law. 4. States parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity. 5. States parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.
4.3 The right of peoples to freely dispose of their natural wealth and resources could be described as the backbone of other economic and social rights. The realization of this collective right is an essential condition for the effective guarantee and implementation of other economic and social rights such as the rights to food, and housing, and for the promotion and strengthening of those rights. As one commentator states: “the right of a people not to be dispossessed of their wealth and natural resources is not just any ordinary right, but the fundamental human right. [It] gives some semblance of form and shape to, and in a very real sense qualifies the other rights.” In effect, this right is an essential element of peoples’ economic security, survival and independence.
4.4 Economic self-determination is often perceived as granting only to states the right to exercise control over their natural wealth and resources. Linking states’ economic independence, self-determination and permanent sovereignty over their natural resources, some commentators have, quite erroneously, limited the application of the permanent sovereignty doctrine to foreign economic activities relating to natural resources exploitation, ignoring the rights of all peoples freely to use and exploit and dispose of their natural wealth and resources.
4.5 While it is true that the doctrine of permanent sovereignty over natural wealth and resources arose in the context of safeguarding developing countries’ interests in relation to the exploitation of their natural resources by foreign corporation, the tendency to focus on one aspect of the doctrine and to exclude the other, is inconsistent and incompatible with basic human rights principles. First, the right of a people not to be dispossessed of their wealth and natural resources is explicitly recognized and guaranteed under human rights treaties such as the ICESCR and the African Charter. These treaties make new demands upon traditional concepts of, and approaches to international law, in particular the law of treaties. They are directed primarily towards the protection of individuals qua human beings, and not particularly concerned with the reciprocal rights and obligations of states parties. In effect, the treaties create unilateral obligations for states parties to guarantee recognized rights and freedoms and to adopt measures to give effect to those rights, while also stipulating that every individual is entitled to the enjoyment of the rights and freedoms they recognized. The Inter-American Court of Human Rights in particular has emphasized,
…that modern human rights in general, and the American Convention in particular are not multilateral treaties of the traditional type concluded to accomplished the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of human beings irrespective of their nationality. In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for common good, assumed various obligations, not in relation to other States, but towards all individuals within their jurisdiction.”
4.6 Second, a review of the travaux preparatoires of the ICESCR and the African Charter reveals that the rights of peoples as well as nations over their natural resources were expressly contemplated. According to Article 32 of the Vienna Convention on the Law of Treaties, the travaux preparatoires may be used as a supplementary means of interpretation in order to determine the meaning of a provision where use of the initial means of interpretation gives results that are ambiguous or manifestly absurd. It can thus be argued that the drafters of the two treaties who insisted on accountability of foreign corporations for the exploitation of the wealth of developing countries never intended to ignore the responsibility of states themselves to fulfil their obligations to dispose of natural wealth and resources for the benefit of their peoples. To imply any such intention would defeat and make hollow the raison d’être of the treaties; which is the promotion and protection of economic and social rights of people, especially the vulnerable sectors of the population.
4.7 This proposition would seem to find support in the provisions of Article 21 of the African Charter, which specifically refer to foreign transnational corporations, which historically have exploited African countries. While spoliation by states themselves or their agents is not expressly mentioned, apparently because the political needs of the time did not require such clarification, but given current realities, it is fair to impute such an interpretation. As one commentator put it, “like charity, exploitation usually begins at home.” As it is shown below, a recent decision by the African Commission supports this proposition.
4.8 One problem, however, is that the African Charter does contain the meaning of “peoples”, despite making references to the term. The clarification of this term, especially in the context of the African Charter, is crucial given the seeming ambiguity created in Article 21 of the Charter. Paragraph 1 of Article 21 refers to the right of ‘all peoples’ to freely dispose of their wealth and natural resources, but paragraph 4 refers to ‘the right of States parties to the present Charter’ to exercise the rights to free disposal of their wealth and natural resources.’ As James Crawford observed, “what was originally treated as a right of peoples is here treated as a right of States, thus casting doubt upon the legitimacy of the assertion that peoples have a right to permanent sovereignty over their natural resources.”
4.9 According to one commentator, the term “peoples” in the African Charter was not defined by its drafters “so as not to end up in difficult discussion.” Although the absence of a definition may allow the term “people” to be interpreted in an expansive and imaginative way, it is hard to escape the conclusion that the lack of definition of “peoples” in the African Charter, despite its full entrenchment, was influenced by political considerations.
4.10 The definition of people is inevitably context dependent. However, scholars have acknowledged the conceptual difficulties of defining a “people” for purpose of permanent sovereignty over wealth and natural resources, in terms of whether it is the same as the “state” or means all persons within the state. Richard Kiwanuka for example defined “people” to mean “the state and the people as synonymous and all persons within a state”. He explains:
The problems addressed by the right to self-determination [under the African Charter] in the economic sense are determined by internal and external factors. This is the justification for vesting the right in both the people and the state. The Westphalian international order of the current epoch requires peoples to act through states when dealing with other peoples, states and entities. In the field of development, the state is an inevitable intermediary. This arises from the fact that
underdevelopment is a structural phenomenon linked to a given mode of international economic relations, and to a certain international division of labour…. These circumstances render it imperative to equate “peoples” with the state where the right to development is concerned. An entity less than the state cannot effectively contest the right to development in the international arena…. However, equating states with “peoples” assumes that the interests of the people are adequately represented by their state -- a rarity in most developing countries, as we all know. In consequence, equating peoples and states further strengthens the state and subjects the rights of the people to the whims of whoever controls the political process…. In sum, the apparently progressive introduction of the concept of “peoples” into the Banjul Charter could actually turn out to be counter-productive in some respects, that is, where the rights and interests of the people are not respected by the state…. In situations of despotic misrule, one of the first casualties is usually the economy, as the governors embark on orgies of personal enrichment…. [Using “people” in this sense] is not to take the ownership of natural resources away from the people; it is to give control to the country, so as to enable it effectively to protect and administer those resources for and on behalf of the people…. [On the other hand] “people” as all persons within a State [is important because] the corporate status of the state works very well, provided one is dealing with external matters and entities. Because of the inherent nature of states and governments, at this point in time, a distinction must be drawn (internally, that is) between the people and their state. This distinction, although not well demarcated in the Banjul Charter, is important to recognize. It is through this meaning that one can easily appreciate the duties of states toward their people, duties provided for in the Banjul Charter.
4.13 Commentators have also questioned the appropriateness of including a right of “peoples” in the context of a human rights treaty concerned primarily with the position of individuals. However, as Richard Kiwanuka put it, “because peoples’ rights are ultimately destined for individuals, they are ipso facto human rights.” Citing Louis Sohn, he emphasized:
In an interclub tennis tournament, only clubs have the right to participate even though individuals actually play the game. Members as skilled as Navratilova or Lendl would not have an automatic right to play in tournaments. Contestants are entered by their clubs in accordance with the internal arrangements of those clubs. The individual’s right to play can only be expressed in and through the club. This right is actualized, first, by protecting the club's rights in the wider setting; and then by the individual's rights in the club. International collective and individual rights are no different.
4.14 In the context of the International Covenant Economic, Social and Cultural Rights (ICESCR) for example, Richard Falk contends that the term “peoples” in the Covenant implies “that governments are the authoritative representatives of people, that they act in international institutions in a fundamental representational role, and that it is ultimately the legitimacy of the peoples that they represent, not their own expression of State interests, that is the underlying ground of their validity.” He goes on to argue that it is the legitimacy of peoples, rather than the transient and potentially dubious legitimacy of governments that constitutes the purpose and rationale for the instruments protecting human rights and for the whole idea of international solidarity. Thus, “states in this sense are an artificial and derivative political reality as compared to peoples.” According to James Crawford, given its entrenchment in human rights treaties such as the ICESCR, “the precedent for treating questions of permanent sovereignty over natural resources as rights of peoples, rather than as rights of States, is an established one.” He argues that the principle of permanent sovereignty over natural resources has the capacity of operating as a guarantee of peoples against their own governments, thus limiting the capacity of governments in the interests of the community. In his view, Article 21 of the African Charter makes a state’s natural resources policy justiciable in the African Commission.
4.15 In fact, the African Commission has provided further conceptual clarifications of “people” in the context of the African Charter. In a case involving Nigeria, the Commission found the country to have breached its obligations to respect, protect, promote and fulfill rights guaranteed by the African Charter, and held Nigeria to be in violation of several rights in the Charter, including the right of peoples to freely dispose of their wealth and natural resources. In that case, the petitioners alleged that the operations of the Nigerian military government through its state oil company, the Nigerian National Petroleum Company (NNPC) as majority shareholder in a consortium with Shell Petroleum Development Corporation (SPDC) had caused environmental degradation and health problems resulting from the contamination of the environment among the Ogoni people. The petitioners also alleged that the consortium disposed of toxic wastes in violation of applicable environmental standards and caused numerous avoidable spills near villages, consequently poisoning much of the region’s soil and water. Furthermore, they alleged that the Government aided these violations by placing the state’s legal and military powers at the disposal of the oil companies; and that the Government, through its security forces, killed innocent civilians and attacked, burned, and destroyed villages, homes, crops, and farm animals. Finally, the petitioners alleged that the Government failed to monitor the activities of the oil companies, provided no information to local communities, conducted no environmental impact studies, and prevented scientists from undertaking independent assessments.
4.16 In its decision, the Commission stated that the obligations of governments under the African Charter include obligations to respect, protect, promote and fulfill the guaranteed rights. It stated further that these obligations “universally apply to all rights and entail a combination of negative and positive duties.” According to the Commission, “there is no right in the African Charter that cannot be made effective.” As the Commission stated,
The State is obliged to respect the free use of resources owned or at the disposal of the individual alone or in any form of association with others, including the household or the family, for the purpose of rights-related needs. And with regard to a collective group, the resources belonging to it should be respected, as it has to use the same resources to satisfy its needs.
4.17 While holding that Nigeria has the right to produce oil, the Commission nonetheless held that the country had not protected several rights contained in the Charter, including the right of the people freely to dispose of their natural wealth and resources. It also held that the lack of involvement of the Ogoni people in the decision that affect them constitutes a violation of Article 21, and asked the Nigerian Government to ensure adequate compensation for victims of violations. As the Commission stated,
The Government of Nigeria facilitated the destruction of the Ogoniland. Contrary to its Charter obligations and despite such internationally established principles, the Nigerian Government has given the green light to private actors, and the oil Companies in particular, to devastatingly affect the well-being of the Ogonis. By any measure of standards, its practice falls short of the minimum conduct expected of governments, and therefore, is in violation of Article 21 of the African Charter.
4.18 One could thus assert that the African Commission does not equate the term ‘peoples’ with the state. Accordingly, Article 21 of the Charter could be seen to directly boost the rights and interests of the peoples within the state, and of the responsibility of the state to those peoples. Clearly, the decision by the Commission reinforces the recognition of a right to economic, rather than political self-determination. Thus, the power of the state to freely dispose of natural wealth and resources would be subject to the consent and interest of those within the state. In effect, the government must utilize the wealth and natural resources to benefit the whole population. As Michael Reisman puts it,
The point about the permanent sovereignty of peoples over their natural resources is not that the resources in question may not be mined and sold. Such doctrine would render them valueless. The point is rather that the national community in which the resources are found is to be a significant beneficiary of their exploitation. The nation-state is now expected to contribute to the welfare of all inhabitants, without even having the right to discriminate among them.
4.19 Kofele Kale adds,
Acts of indigenous spoliation violate, as it were, the mother of all rights. A people’s enjoyment of the other rights within the pantheon of human rights is dependent on their access to the national wealth. One cannot talk realistically of a fundamental right to life when this life can barely be sustained because it is cut off from the most basic necessities of food, shelter and medical care.
4.19 In the light of the above therefore, the Applicant contends that the right of peoples to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the state concerned. In effect, permanent sovereignty reflects the inherent and overriding right of a state to control the exploitation and the use of its natural resources. It is regarded as a prerequisite for economic development. Thus, the free and beneficial exercise of the sovereignty of peoples over their national resources must be furthered by the mutual respect of states based on their sovereign equality. Thus, the principle of state sovereignty is not absolute or without limits.
4.20 The Applicant also contends that by its nature, the exercise of the state’s right to dispose of wealth and natural resources for the benefit of the people implies an obligation of fidelity on the state, thereby establishing a fiduciary relation between the state or its agents, and the citizens. According to the BLACK’S LAW DICTIONARY, a fiduciary relationship is one,
Founded on trust or confidence reposed by one person in the integrity and fidelity of another. Such relationship arises whenever confidence is reposed on one side, and domination and influence result on the other…. Out of such a relation, the law raises the rule that neither party may exert influence or pressure upon the other, take selfish advantage of his trust, or deal with the subject-matter of the trust in such a way as to benefit himself or prejudice the other except in the exercise of the utmost good faith and with the full knowledge and consent of that other.
4.21 Commentators have attempted to describe those aspects of relationships that justify imposition of fiduciary relations or what Deborah DeMott has called “fiduciary constraints.” In general terms, the law governing fiduciary obligation addresses two questions: first, in what circumstances do fiduciary obligations apply? Second, what does the obligation require a person to do? If a person in a particular relationship with another is subject to a fiduciary obligation, that person (the fiduciary) must be loyal to the interests of the other persons (the beneficiary).
4.22 However, the fiduciary’s duties go beyond mere fairness and honesty; they oblige him to act to further the beneficiary’s best interests. Although one can identify common core principles of fiduciary obligation, these principles apply with greater or lesser force in different contexts involving different types of parties and relationships. Recognition that the law of fiduciary obligation is situation-specific should therefore be the starting point for any further analysis. Accordingly, fiduciary relations can be presumed or inferred from the factual circumstances of any given relationship. Although traditionally applied to prototypical fiduciary relations such as agency, and trust, fiduciary obligations have been frequently imposed in novel situations that go beyond these conventional categories. As Deborah DeMott explains,
Fiduciary constraint on a party’s discretion to pursue self-interest resists tidy categorisation… fiduciary obligation is [thus] a device that enables the law to respond to a range of situations in which, for a variety of reasons, one person’s discretion ought to be controlled because of characteristics of that person’s relationship with another. This instrumental description is the only general assertion about fiduciary obligation that can be sustained.”
4.23 Given the above discussion, and considering the inherent nature of the right of the state to freely dispose of its wealth and natural resources for the benefit of it own people, the Applicant contends that implicit in the exercise of this right by the state is an obligation of fidelity which establishes a fiduciary relation (a trust-like relationship) between the state and its agents, and their citizens.
4.24 Thus, implicit in the exercise of state’s right to dispose its wealth and resources is a duty not to act in any manner that would deny those rights or impair their enjoyment by the people.
4.25 This right entitles the Applicant and other Nigerians to information regarding the spending of recovered stolen public funds
4.26 By logical extension, the Applicant contends that such a fiduciary relation implies a generic duty to on the Respondents to ensure openness, transparency and accountability in the spending of public funds, including recovered stolen public funds.
4.27 The Applicant further contends that it is essential to bring the principle of fiduciary obligation more precisely within the human rights framework, and to ensure access to information if only to ensure that Nigeria’s wealth and resources are being utilized for to fulfill the human rights of Nigerians and ensure social and economic development.
4.28 Fiduciary obligation in the context of state’s right over national wealth and resources can be further defended on the ground of state’s voluntary undertakings (through ratification) under human rights treaties like the African Charter. Thus, states, including the Respondents have put themselves in a position, which demands that they act with fidelity in exercising the right to national wealth and resources for the benefit of the people.
4.29 In sum, being a fiduciary obligation, the exercise of a state’s right to dispose of its wealth and resources would be breached when states or their agents refuse to provide information on the spending of public funds including recovered stolen public funds.
5. Concluding remarks
5.1 It is hereby submitted that under the combined Articles 9, 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, the Respondents have violated the right of the Applicant and of other Nigerians to information; the right of the people not to be dispossessed of their wealth and natural resources and the right of the people to economic and social development.
6.2 On the basis of the above reasoning, principles, legal and judicial authorities, the Applicant urges the Honourable Court to grant the following reliefs:
C. A DECLARATION that the failure and/or refusal of the Respondents to individually and/or collectively carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website, is illegal and unlawful as it violates Articles 9, 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act
D. AN ORDER OF MANDAMUS compelling the Respondents individually and/or collectively to carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website
Dated this……………day of………………………..2010
…………………………………
ADETOKUNBO MUMUNI ESQ
SOCIO-ECONOMIC RIGHTS & ACCOUNTABILITY PROJECT (SERAP)
4 AKINTOYE SHOGUNLE STREET OFF UNITY ROAD IKEJA LAGOS
FOR SERVICE ON:
THE DEFENDANTS
His Excellency Alhaji Umar Yar’Adua
PRESIDENT OF THE FEDERAL REPUBLIC OF
NIGERIA
Commander in Chief of the Armed Forces
Office of the President
Aso Rock
Abuja,
ATTORNEY GENERAL OF THE FEDERATION
Federal Secretariat Towers (5th & 10th floors),
Shehu Shagari Way, Central Area,
P.M.B. 192, Garki
Abuja
ACCOUNTANT GENERAL OF THE FEDERATION
C/O
ATTORNEY GENERAL OF THE FEDERATION
Federal Secretariat Towers (5th & 10th floors),
Shehu Shagari Way, Central Area,
P.M.B. 192, Garki
Abuja
AUDITOR GENERAL OF THE FEDERATION
C/O
ATTORNEY GENERAL OF THE FEDERATION
Federal Secretariat Towers (5th & 10th floors),
Shehu Shagari Way, Central Area,
P.M.B. 192, Garki
Abuja
According to the group, “the Respondents have not shown transparency, accountability and openness in the spending of recovered stolen public funds, estimated at N600 billion, by both the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and Other Related Offences Commission (ICPC).”
In the suit number FHC/L/CS/89/2010 dated 26 January 2010, and filed by SERAP’s lawyer, Adetokunbo Mumuni, the Applicant stated that, “lack of disclosure in the spending of recovered loot is aptly illustrated by the secrecy surrounding the spending of recovered funds from the late Head of State, Gen. Sani Abacha (about $1.9 billion returned); the former Inspector General of Police, Tafa Balogun (about N10 billion returned); and the former governor of Bayelsa State, Diepreye Alamieyeseigha (about $1.9 million returned).”
The suit, which is based on the new Fundamental Rights (Enforcement Procedure) Rules 2009, argues that, “the right of Nigerians to “receive” information in Article 9(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act logically imposes a legal obligation on the government to “provide”. Implicit in Article 9(1) is a responsibility on the part of the Respondents to promote and ensure openness and transparency in the spending of government, including in this case the spending of recovered stolen public funds.”
“The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transaction,” the group further argued.
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According to the group, “access to information of this nature is especially important in this country, which is struggling to establish the rule of law and democracy in the face of underdevelopment, including in the Niger Delta, continued sectarian violence, and where human rights conditions remain poor. Transparent information flows contribute towards a culture of good governance and openness and also help to develop a sense of public trust in the authorities, at the federal, state and local level.”
“Without an individual right to access information on critical spending, state authorities can control the flow of information, “hiding” material that is damaging to the government and selectively releasing information which government deems appropriate for public consumption only. In such a climate, corruption thrives and human rights violations can remain unchecked,” the suit added.
Citing international, regional and national cases and authorities, the group also argued that “the failure to disclosure this information has undermined the human rights of the Applicants and other Nigerians, including the right to take part in public affairs. Unless the Court compel the Respondents to disclose the information, the information may never be disclosed and the human rights of millions of Nigerians will continue to suffer.
Relying on Articles 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act the group also argued that “by its nature, the exercise of the state’s right to dispose of wealth and natural resources for the benefit of the people implies an obligation of fidelity on the state, thereby establishing a fiduciary relation between the state or its agents, and the citizens. Thus, implicit in the exercise of state’s right to dispose its wealth and resources is a duty not to act in any manner that would deny those rights or impair their enjoyment by the people. Such a fiduciary relation implies a generic duty to on the Respondents to ensure openness, transparency and accountability in the spending of public funds, including recovered stolen public funds.”
The suit is asking the court for the following reliefs:
A DECLARATION that the failure and/or refusal of the Respondents to individually and/or collectively carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website, is illegal and unlawful as it violates Articles 9, 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act
AN ORDER OF MANDAMUS compelling the Respondents individually and/or collectively to carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website
No date has been fixed for the hearing of the case.
Signed
Adetokunbo Mumuni
Executive Director
26/1/2010
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT LAGOS
SUIT NO: FHC/L/CS/89/2010
IN THE MATTER OF AN APPLICATION FOR THE ENFORCEMENT OF THE APPLICANT’S FUNDAMENTAL RIGHTS TO INFORMATION AND NATURAL RESOURCES & WEALTH
BETWEEN:
REGISTERED TRUSTTES OF
SOCIO-ECONOMIC RIGHTS & ACCOUNTABILITY
PROJECT (SERAP) )…. APPLICANT
AND
PRESIDENT OF THE FEDERAL REPUBLIC OF )
NIGERIA
ATTORNEY GENERAL OF THE FEDERATION )
ACCOUNTANT GENERAL OF THE FEDERATION )
AUDITOR GENERAL OF THE FEDERATION )….RESPONDENTS
ORIGINATING SUMMONS
Brought Pursuant to:
1. Order II Rules 1, 2, 3, 4, and 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009
2. Inherent Jurisdiction of the Court
TAKE NOTICE that this Honourable Court will be moved on day of 2010 at the hour of 9 O’clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the Applicant for the following reliefs:
A. A DECLARATION that the failure and/or refusal of the Respondents to individually and/or collectively carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website, is illegal and unlawful as it violates Articles 9, 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act
B. AN ORDER OF MANDAMUS compelling the Respondents individually and/or collectively to carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website
AND TAKE FURTHER NOTICE that at the hearing of this Application the Applicant will rely on the Statement, supporting Affidavit as well as the Written Address.
Dated this ……………...day of………………………2010
…………………………………
ADETOKUNBO MUMUNI ESQ
SOCIO-ECONOMIC RIGHTS & ACCOUNTABILITY PROJECT (SERAP)
4 AKINTOYE SHOGUNLE STREET OFF UNITY ROAD IKEJA LAGOS
FOR SERVICE ON:
THE DEFENDANTS
His Excellency Alhaji Umar Yar’Adua
PRESIDENT OF THE FEDERAL REPUBLIC OF
NIGERIA
Commander in Chief of the Armed Forces
Office of the President
Aso Rock
Abuja,
ATTORNEY GENERAL OF THE FEDERATION
Federal Secretariat Towers (5th & 10th floors),
Shehu Shagari Way, Central Area,
P.M.B. 192, Garki
Abuja
ACCOUNTANT GENERAL OF THE FEDERATION
C/O
ATTORNEY GENERAL OF THE FEDERATION
Federal Secretariat Towers (5th & 10th floors),
Shehu Shagari Way, Central Area,
P.M.B. 192, Garki
Abuja
AUDITOR GENERAL OF THE FEDERATION
C/O
ATTORNEY GENERAL OF THE FEDERATION
Federal Secretariat Towers (5th & 10th floors),
Shehu Shagari Way, Central Area,
P.M.B. 192, Garki
Abuja
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT LAGOS
SUIT NO: FHC/L/CS/89/2010
IN THE MATTER OF AN APPLICATION FOR THE ENFORCEMENT OF THE APPLICANT’S FUNDAMENTAL RIGHTS TO INFORMATION AND NATURAL RESOURCES & WEALTH
BETWEEN:
REGISTERED TRUSTTES OF
SOCIO-ECONOMIC RIGHTS & ACCOUNTABILITY
PROJECT (SERAP) )…. APPLICANT
AND
PRESIDENT OF THE FEDERAL REPUBLIC OF )
NIGERIA
ATTORNEY GENERAL OF THE FEDERATION )
ACCOUNTANT GENERAL OF THE FEDERATION )
AUDITOR GENERAL OF THE FEDERATION )….RESPONDENTS
STATEMENT
1. NAMES AND DESCRIPTIONS OF THE APPLICANT
The Applicant is Socio-Economic Rights & Accountability Project (SERAP); 4 Akintoye Shogunle Street, Off Awolowo Way Ikeja, Lagos Nigeria. SERAP is a human rights non-governmental organization registered under Nigerian laws, and whose mandates and objectives include the promotion of respect for socio-economic rights of Nigerians, through litigation, research and publications, advocacy and monitoring. SERAP seeks to promote the full realization of economic and social rights in Nigeria by working to ensure that public institutions and officials and non-state actors are made more accountable and transparent in the use of Nigeria’s wealth and natural resources.
2. RELIEFS SOUGHT BY THE APPLICANT
A. A DECLARATION that the failure and/or refusal of the Respondents to individually and/or collectively carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website, is illegal and unlawful as it violates Articles 9, 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act
B. AN ORDER OF MANDAMUS compelling the Respondents individually and/or collectively to carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website
3. GROUNDS FOR SEEKING RELIEFS
(i) By virtue of Articles 9, 21, and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, the Respondents are individually and/or collectively required to guarantee to the Applicant and all Nigerians the right to receive information regarding the spending of stolen public funds; the right to natural wealth and resources; and the right to development.
ii. The failure and/or refusal of the Respondents to provide information regarding the spending of public funds despite the request by the Applicant is illegal and unlawful as it violates the Applicant’s right to receive information and breaches the fiduciary relationship implied and imposed by Articles 9, 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
…………………………………
ADETOKUNBO MUMUNI ESQ
SOCIO-ECONOMIC RIGHTS & ACCOUNTABILITY PROJECT (SERAP)
4 AKINTOYE SHOGUNLE STREET OFF UNITY ROAD IKEJA LAGOS
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT LAGOS
SUIT NO: FHC/L/CS/89/2010
IN THE MATTER OF AN APPLICATION FOR THE ENFORCEMENT OF THE APPLICANT’S FUNDAMENTAL RIGHTS TO INFORMATION AND NATURAL RESOURCES & WEALTH
BETWEEN:
REGISTERED TRUSTTES OF
SOCIO-ECONOMIC RIGHTS & ACCOUNTABILITY
PROJECT (SERAP) )…. APPLICANT
AND
PRESIDENT OF THE FEDERAL REPUBLIC OF )
NIGERIA
ATTORNEY GENERAL OF THE FEDERATION )
ACCOUNTANT GENERAL OF THE FEDERATION )
AUDITOR GENERAL OF THE FEDERATION )….RESPONDENTS
AFFIDAVIT IN SUPPORT
I, Adetola Adeleke, Male, Christian, and Litigation Clerk of 4 Akintoye Shogunle Street, Ikeja, Lagos, hereby make Oath and state as follows:
1. That I am a Litigation Clerk of the Socio-Economic Rights and Accountability Project (SERAP), the Applicant in this suit.
2. That I have the consent and authority of the Applicant herein to depose to this affidavit.
3. That by virtue of my position and the fact stated in paragraph 2 hereof, I am conversant with the facts of this case and with the facts deposed to herein.
4. That the Applicant is a human rights non-governmental organization established in Nigeria and incorporated under Part C of the Companies and Allied Matters Decree, 1990. A copy of the Certificate of Incorporation of SERAP is attached herewith as Exhibit 1.
5. That the Applicant seeks to promote the inalienable and internationally recognized economic, social and cultural rights of the citizens to housing, education, health, food, work and to an adequate standard of living through litigation and other legal and constitutional means.
6. That the Applicant also works to hold government and public officials at the local, state and federal levels accountable for human rights violations, including economic, social and cultural rights; and to ensure Nigeria’s compliance with its Constitutional and international human rights obligations. A copy of the Constitution of the Plaintiff is hereby attached as Exhibit 2.
7. The 1st Defendant is the President of Nigeria and Commander-in-Chief of the Nigerian Armed Forces. The 2nd Defendant is the Attorney-General of the Federation, and as such the Chief Law Officer of the Federation. The 3rd Defendant is the Accountant-General of the Federation. The 4th Defendant is Auditor-General of the Federation.
8. The Respondents individually and/or collectively are charged with responsibility to promote and ensure respect for the fundamental rights of all Nigerians to receive information regarding the spending of recovered stolen public funds; the right to natural wealth and resources; and the right to development.
9. The Respondents individually and/or collectively also have a fiduciary responsibility to ensure the transparent and accountable spending of recovered stolen public funds
10. By a letter dated 11th June 2009, the Applicant requested the 1st Respondent, His Excellency President Umaru Musa Yar’ Adua to begin a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website. A copy of the letter is hereby attached and marked Exhibit 3.
11. In the letter to the 1st Respondent the Applicant stated as follows:
(i) Despite the Respondents’ oft-expressed commitment to the anti-corruption fight in the country, questions remain as to the government’s lack of transparency and openness in the spending of recovered stolen public funds, estimated at N600 billion, by both the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and Other Related Offences Commission (ICPC).
(ii) The Applicant’s investigation reveals strong and credible evidence to suggest that most of the recovered funds may have been re-stolen, misused or mismanaged.
(iii) The recovered N600 billion is only a paltry of over $400 billion, which the United Nations Office on Drugs and Crimes said has been stolen by generation of high level Nigerian public officials.
(iv) The Respondents’ lack of transparency, accountability and full disclosure in the spending of recovered loot is aptly illustrated by the secrecy surrounding the spending of recovered funds from the late Head of State, Gen. Sani Abacha (about $1.9 billion returned); the former Inspector General of Police, Tafa Balogun (about N10 billion returned); and the former governor of Bayelsa State, Diepreye Alamieyeseigha (about $1.9 million returned).
(v) This situation is unacceptable as it is fuelling a culture of official corruption and impunity of perpetrators in the country. High level official corruption is bleeding Nigeria to death and the cost is borne by the poor. Recovered stolen public funds have apparently not been properly spent to achieve sustainable development for Nigeria, throwing millions of Nigerians deeper into poverty.
(vi) The Respondents have a responsibility to ensure the full realization of internationally recognized economic and social rights and the right to development of all Nigerians.
(vii) The Applicant is seriously concerned that although anti-corruption agencies such as the Independent Corrupt Practices and Other Related Offences Commission (ICPC), the Economic and Financial Crimes Commission (EFCC) have recovered huge stolen public funds, there is little or no public information on the spending of the funds, contrary to Nigeria’s international anti-corruption commitments, including under the UN Convention against Corruption and the AU Convention on Preventing and Combating Corruption.
(viii) The Respondents are obligated to promote integrity, accountability and proper management of public affairs and public property, including recovered loot. Similarly, under these conventions, Nigeria is obligated to ensure the right of access to any information that may be required to assist in the fight against corruption. Indeed, the UN Conference of States Parties, a forum charged with the implementation of the UN Convention against Corruption has recognized that a transparent and accountable management of recovered stolen asset is central to the effective tackling of corruption, and to the full realization of the Convention’s provisions.
(ix) Unless the Respondents urgently undertake a proper auditing of the spending of recovered stolen public funds and widely publish the outcome of the exercise, there will be no end to the vicious circle of high level official corruption and impunity of perpetrators in the country.
11. Despite demand by the Applicant, the Respondents have failed and/or refused to carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website.
12. Unless the reliefs sought by the Applicant are granted the Respondents will not carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and will not publish widely the outcome of such auditing.
13. I make this declaration in good faith.
………………
DEPONENT
SWORN TO at the Federal
High Court Registry, Lagos
Dated this …….…day of ……………………….2010.
BEFORE ME
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT LAGOS
SUIT NO: FHC/L/CS/89/2010
IN THE MATTER OF AN APPLICATION FOR THE ENFORCEMENT OF THE APPLICANT’S FUNDAMENTAL RIGHTS TO INFORMATION AND NATURAL RESOURCES & WEALTH
BETWEEN:
REGISTERED TRUSTTES OF
SOCIO-ECONOMIC RIGHTS & ACCOUNTABILITY
PROJECT (SERAP) )…. APPLICANT
AND
PRESIDENT OF THE FEDERAL REPUBLIC OF )
NIGERIA
ATTORNEY GENERAL OF THE FEDERATION )
ACCOUNTANT GENERAL OF THE FEDERATION)
AUDITOR GENERAL OF
THE FEDERATION )…RESPONDENTS
APPLICANT’S WRITTEN ADDRESS
1. INTRODUCTION:
1.1 The Applicant, one of Nigeria’s leading human rights non-governmental organizations institutes the present case against the Respondent. The Applicant is praying the Honourable Court to compel the Respondents individually and/or collectively to carry out a transparent auditing of the spending of the over #600b (naira) recovered stolen public funds since the return of civil rule in 1999. The Applicant is also praying the Honourable Court to compel the Respondent to publish information on the spending of the recovered funds.
1.2 The Applicant contends that the failure and/or refusal of the Respondents to provide information regarding the spending of stolen public funds despite the request by the Applicant is illegal and unlawful as it violates the Applicant’s right to receive information and breaches the fiduciary relationship implied and imposed by Articles 9, 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
2. ISSUES FOR DETERMINATION
The Applicant submits that there are two issues for determination in this case which are:-
A. Whether the failure and/or refusal of Respondents to provide information regarding the spending of stolen public funds despite the request by the Applicant is not illegal and unlawful by virtue of Article 9 (providing that every individual shall have the right to receive information) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
B. Whether the failure and/or refusal of the Respondents to provide information regarding the spending of recovered stolen public funds is not a breach of the fiduciary obligation implicit in Articles 21 and 22 (providing respectively for the rights of peoples to freely dispose of their wealth and natural resources and to their economic and social development) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
3. ISSUE ONE:-
3.1 Whether the failure and/or refusal of Respondents to provide information regarding the spending of stolen public funds despite the request by the Applicant is not illegal and unlawful by virtue of Article 9 (providing that every individual shall have the right to receive information) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
3.2 In the affidavit in support of the Application, the Applicant has averred that the Respondents have not shown transparency, accountability and openness in the spending of recovered stolen public funds, estimated at N600 billion, by both the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and Other Related Offences Commission (ICPC). The need for information on the spending of the recovered stolen funds becomes especially important in the face of strong and credible evidence to suggest that most of the recovered funds may have been re-stolen, misused or mismanaged.
3.3 In order to address this issue it is pertinent to refer to Article 9(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. Article 9(1) provides that
“Every individual shall have the right to receive information”.
3.4 From the clear and unambiguous provision of Article 9(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, the Respondents are legally required to provide information to the Applicant and other Nigerians on the spending of the recovered stolen public funds over #600b. The right of Nigerians to “receive” logically imposes a legal obligation on the government to “provide”.
3.5 In this case, the Applicant has averred that the Respondents’ lack of transparency, accountability and full disclosure in the spending of recovered loot is aptly illustrated by the secrecy surrounding the spending of recovered funds from the late Head of State, Gen. Sani Abacha (about $1.9 billion returned); the former Inspector General of Police, Tafa Balogun (about N10 billion returned); and the former governor of Bayelsa State, Diepreye Alamieyeseigha (about $1.9 million returned). The Applicant has also averred that, “This situation is fuelling a culture of official corruption and impunity of perpetrators in the country. High level official corruption is bleeding Nigeria to death and the cost is borne by the poor. Recovered stolen public funds have apparently not been properly spent to achieve sustainable development for Nigeria, throwing millions of Nigerians deeper into poverty.”
3.6 The Applicant contends that the right of Nigerians to “receive” logically imposes a legal obligation on the government to “provide”. Implicit in Article 9(1) is a responsibility on the part of the Respondents to promote and ensure openness and transparency in the spending of government, including in this case the spending of recovered stolen public funds. Therefore, the failure and/or refusal of the Respondents to provide information regarding the spending of recovered stolen funds is illegal and unlawful and directly violates Article 9(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act
3.7 Access to information of this nature is especially important in this country, which is struggling to establish the rule of law and democracy in the face of underdevelopment, including in the Niger Delta, continued sectarian violence, and where human rights conditions remain poor. Transparent information flows contribute towards a culture of good governance and openness and also help to develop a sense of public trust in the authorities, at the federal, state and local level.
3.8 The right of access to information held by public bodies – often referred to as “freedom of information” or the “right to information” – is a fundamental human right recognized in international law. It is crucial as a right in its own regard as well as central to the functioning of democracy and the realization of all other human rights.
3.9 Without an individual right to access information, state authorities can control the flow of information, “hiding” material that is damaging to the government and selectively releasing information which government deems appropriate for public consumption only. In such a climate, corruption thrives and human rights violations can remain unchecked.
3.10 Developments at international, regional and national levels show that increasingly governments are seen to have a positive duty to provide information in general as well as the information necessary for the enjoyment of fundamental rights. International human rights laws and standards underpin the right of access to information.
3.11 Thus, the African Commission on Human and Peoples’ Rights (a body established to oversee the implementation of the African Charter on Human and Peoples’ Rights) has adopted a Declaration of Principles on Freedom of Expression in Africa, Principle IV of which states, in part:
“1. Public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information, subject only to clearly defined rules established by law. 2. The right to information shall be guaranteed by law in accordance with the following principles: everyone has the right to access information held by public bodies; everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right; any refusal to disclose information shall be subject to appeal to an independent body and/or the courts; public bodies shall be required, even in the absence of a request, actively to publish important information of significant public interest; no one shall be subject to any sanction for releasing in good faith information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment save where the imposition of sanctions serves a legitimate interest and is necessary in a democratic society; and secrecy laws shall be amended as necessary to comply with freedom of information principles.”
3.12 Similarly, in 2007 the African Union adopted a Charter on Democracy, Elections and Governance, which aims to “Promote adherence, by each State Party, to the universal values and principles of democracy and respect for human rights; Promote and enhance adherence to the principle of the rule of law premised upon the respect for, and the supremacy of, the Constitution and constitutional order in the political arrangements of the State Parties.” Significantly, the Charter requires African governments to “promote the establishment of the necessary conditions to foster citizen participation, transparency, access to information, freedom of the press and accountability in the management of public affairs.”
3.13 Nigeria has signed the Charter, and therefore has an obligation not to defeat the object and purpose of the Charter
3.14 Similarly, Article 19 of the Universal Declaration on Human Rights (UDHR) , adopted as a United Nations General Assembly resolution in 1948, states: “Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
3.15 While the UDHR is not directly binding on States, parts of it, including Article 19, are widely regarded as having acquired legal force as customary international law. Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which Nigeria has ratified, guarantees the right to freedom of expression and information in terms similar to the UDHR.
3.16 In 1995, the UN Special Rapporteur on Freedom of Opinion and Expression,stated: “There is now little doubt that there is growing international recognition of a general right of access to information as well as of the importance of adopting the legislative and other measures necessary to make this right effective.”
3.17 In his 1998 Annual Report, the Special Rapporteur reaffirmed that the right to information includes the right to access information held by the State: “The right to seek, receive and impart information imposes a positive obligation on States to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems….”
3.18 Furthermore, the Representative on Freedom of the Media of the Organisation for Security and Cooperation in Europe and the Special Rapporteur on Freedom of Expression of the Organisation of American States in a Joint Declaration issued in December 2004, stated: “The right to access information held by public authorities is a fundamental human right which should be given effect at the national level, based on the principle of maximum disclosure, establishing a presumption that all information is accessible subject only to a narrow system of exceptions.”
3.19 The right to information has also been explicitly recognized in the other regional systems for the protection of human rights. Within the Inter-American system, the Inter-American Commission on Human Rights approved the Inter-American Declaration of Principles on Freedom of Expression in October 2000.43 The Principles unequivocally recognize a right to access information held by the State, as both an aspect of freedom of expression and a fundamental right on its own:
“Every person has the right to access information about himself or herself or his/her assets expeditiously and not onerously, whether it be contained in databases or public or private registries, and if necessary to update it, correct it and/or amend it. Access to information held by the state is a fundamental right of every individual. States have obligations to guarantee the full exercise of this right. This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies.”
3.20 Within Europe, on 27 November 2009, the Council of Europe adopted the Convention on Access to Official Documents which opened for signature on 17 June 2009.
3.21 Even more recently, in its recent decision concerning the Hungarian Civil Liberties Union, the European Court of Human Rights recognized that when public bodies already hold information that is needed for public debate, the refusal to provide it to those who are seeking it is a violation of the right to freedom of expression and information.
3.22 These recent developments stand against the backdrop of the Committee of Ministers of the Council of Europe Recommendation on Access to Official Documents of 2002. Principle III provides generally:
“Member states should guarantee the right of everyone to have access, on request, to official documents held by public authorities. This principle should apply without discrimination on any ground, including that of national origin.”
3.23 Additionally, the Commonwealth of which Nigeria is a member has also recognized the fundamental importance of the right to information, and has taken a number of significant steps to elaborate on the content of that right. Finally, although the Arab Charter on Human Rights, adopted by the Arab League on 22 May 2004, has been criticized for its significant deficiencies as a human rights instrument, it does contain an express guarantee of the right to information.
3.24 Implementation of the right to information is also a key requirement imposed on States parties to the UN Convention against Corruption. Nigeria has ratified the Convention. Article 13 of the Convention requires that States should “[ensure] that the public has effective access to information”.
3.25 The Applicant notes that under international law, restrictions on the right to information must meet the requirements stipulated in Article 19(3) of the ICCPR:
“The exercise of the rights [to freedom of expression and information] may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.”
3.26 The requirements of Article 19(3) translate into a three-part test, whereby a public body must disclose any information which it holds and is asked for, unless: 1. The information concerns a legitimate protected interest listed in the law; 2. Disclosure threatens substantial harm to that interest; and 3. The harm to the protected interest is greater than the public interest in having the information.
3.27 The Applicant contends that the present application is not affected by the exceptions highlighted above, as there is an overriding public interest in disclosure of information on the spending of recovered stolen public funds.
3.28 Similarly, in interpreting these exceptions, the Applicant urges the Honourable Court to pay particular attention to the principles articulated in the new Fundamental Rights (Enforcement Procedure) Rules 2009, which provides among others that,
“The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any other law and whenever it applies or interprets any rule. The overriding objectives of these Rules are as follows: (a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them. (b) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. Such bills include; (i)The African Charter on Human and Peoples’ Rights and other instruments (including protocols) in the African regional human rights system, (ii)The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations human rights system, (c) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient.
3.29 Furthermore, decisions by national or regional courts have declared the public's right to information to be implicit in the rights of freedom of expression or representative democracy or both. In several countries, such as New Zealand, the presumption is that information should be made available unless a good reason exists to withhold it.
3.30 The European Court of First Instance in 1995 found in favour of a journalist working for a British newspaper, who had challenged the right of the Council of the European Union to conceal minutes of law-making meetings from the public. The Court decided that the Council’s policy of withholding information contravened a 1993 code of conduct that guaranteed European citizens "the widest possible access to documents".
3.31 In India more than 20 years ago the Supreme Court addressed the responsibility of government and urged a more open administration, stating:
The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transaction
3.32 The failure to disclosure this information has undermined the human rights of the Applicants and other Nigerians, including the right to take part in public affairs. Unless the Court compel the Respondents to disclose the information, the information may never be disclosed and the human rights of millions of Nigerians will continue to suffer.
3.33 On the basis of the above, the Applicant urges the Honourable Court to hold that the failure and/or refusal of the Respondents to provide information on the spending of recovered stolen public funds is a violation of Nigeria’s obligations under Article 9 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.
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4. ISSUE TWO
4.1 Whether the failure and/or refusal of the Respondents to provide information regarding the spending of recovered stolen public funds is not a breach of the fiduciary obligation implicit in Articles 21 and 22 (providing respectively for the rights of peoples to freely dispose of their wealth and natural resources and to their economic and social development) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
4.2 The right of peoples to freely dispose of their natural wealth and resources find legal expression in the African Charter. While this right is closely linked to the right to self-determination, and economic independence, it is different because it calls for the effective realization of a right to economic, rather than political self-determination. The origins lie in the 1962 General Assembly Resolution on Permanent Sovereignty over Natural Resources, which inspired the following language of Article 21 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act to the effect that,
All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. 2. In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation [Emphasis supplied] . 3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law. 4. States parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity. 5. States parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.
4.3 The right of peoples to freely dispose of their natural wealth and resources could be described as the backbone of other economic and social rights. The realization of this collective right is an essential condition for the effective guarantee and implementation of other economic and social rights such as the rights to food, and housing, and for the promotion and strengthening of those rights. As one commentator states: “the right of a people not to be dispossessed of their wealth and natural resources is not just any ordinary right, but the fundamental human right. [It] gives some semblance of form and shape to, and in a very real sense qualifies the other rights.” In effect, this right is an essential element of peoples’ economic security, survival and independence.
4.4 Economic self-determination is often perceived as granting only to states the right to exercise control over their natural wealth and resources. Linking states’ economic independence, self-determination and permanent sovereignty over their natural resources, some commentators have, quite erroneously, limited the application of the permanent sovereignty doctrine to foreign economic activities relating to natural resources exploitation, ignoring the rights of all peoples freely to use and exploit and dispose of their natural wealth and resources.
4.5 While it is true that the doctrine of permanent sovereignty over natural wealth and resources arose in the context of safeguarding developing countries’ interests in relation to the exploitation of their natural resources by foreign corporation, the tendency to focus on one aspect of the doctrine and to exclude the other, is inconsistent and incompatible with basic human rights principles. First, the right of a people not to be dispossessed of their wealth and natural resources is explicitly recognized and guaranteed under human rights treaties such as the ICESCR and the African Charter. These treaties make new demands upon traditional concepts of, and approaches to international law, in particular the law of treaties. They are directed primarily towards the protection of individuals qua human beings, and not particularly concerned with the reciprocal rights and obligations of states parties. In effect, the treaties create unilateral obligations for states parties to guarantee recognized rights and freedoms and to adopt measures to give effect to those rights, while also stipulating that every individual is entitled to the enjoyment of the rights and freedoms they recognized. The Inter-American Court of Human Rights in particular has emphasized,
…that modern human rights in general, and the American Convention in particular are not multilateral treaties of the traditional type concluded to accomplished the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of human beings irrespective of their nationality. In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for common good, assumed various obligations, not in relation to other States, but towards all individuals within their jurisdiction.”
4.6 Second, a review of the travaux preparatoires of the ICESCR and the African Charter reveals that the rights of peoples as well as nations over their natural resources were expressly contemplated. According to Article 32 of the Vienna Convention on the Law of Treaties, the travaux preparatoires may be used as a supplementary means of interpretation in order to determine the meaning of a provision where use of the initial means of interpretation gives results that are ambiguous or manifestly absurd. It can thus be argued that the drafters of the two treaties who insisted on accountability of foreign corporations for the exploitation of the wealth of developing countries never intended to ignore the responsibility of states themselves to fulfil their obligations to dispose of natural wealth and resources for the benefit of their peoples. To imply any such intention would defeat and make hollow the raison d’être of the treaties; which is the promotion and protection of economic and social rights of people, especially the vulnerable sectors of the population.
4.7 This proposition would seem to find support in the provisions of Article 21 of the African Charter, which specifically refer to foreign transnational corporations, which historically have exploited African countries. While spoliation by states themselves or their agents is not expressly mentioned, apparently because the political needs of the time did not require such clarification, but given current realities, it is fair to impute such an interpretation. As one commentator put it, “like charity, exploitation usually begins at home.” As it is shown below, a recent decision by the African Commission supports this proposition.
4.8 One problem, however, is that the African Charter does contain the meaning of “peoples”, despite making references to the term. The clarification of this term, especially in the context of the African Charter, is crucial given the seeming ambiguity created in Article 21 of the Charter. Paragraph 1 of Article 21 refers to the right of ‘all peoples’ to freely dispose of their wealth and natural resources, but paragraph 4 refers to ‘the right of States parties to the present Charter’ to exercise the rights to free disposal of their wealth and natural resources.’ As James Crawford observed, “what was originally treated as a right of peoples is here treated as a right of States, thus casting doubt upon the legitimacy of the assertion that peoples have a right to permanent sovereignty over their natural resources.”
4.9 According to one commentator, the term “peoples” in the African Charter was not defined by its drafters “so as not to end up in difficult discussion.” Although the absence of a definition may allow the term “people” to be interpreted in an expansive and imaginative way, it is hard to escape the conclusion that the lack of definition of “peoples” in the African Charter, despite its full entrenchment, was influenced by political considerations.
4.10 The definition of people is inevitably context dependent. However, scholars have acknowledged the conceptual difficulties of defining a “people” for purpose of permanent sovereignty over wealth and natural resources, in terms of whether it is the same as the “state” or means all persons within the state. Richard Kiwanuka for example defined “people” to mean “the state and the people as synonymous and all persons within a state”. He explains:
The problems addressed by the right to self-determination [under the African Charter] in the economic sense are determined by internal and external factors. This is the justification for vesting the right in both the people and the state. The Westphalian international order of the current epoch requires peoples to act through states when dealing with other peoples, states and entities. In the field of development, the state is an inevitable intermediary. This arises from the fact that
underdevelopment is a structural phenomenon linked to a given mode of international economic relations, and to a certain international division of labour…. These circumstances render it imperative to equate “peoples” with the state where the right to development is concerned. An entity less than the state cannot effectively contest the right to development in the international arena…. However, equating states with “peoples” assumes that the interests of the people are adequately represented by their state -- a rarity in most developing countries, as we all know. In consequence, equating peoples and states further strengthens the state and subjects the rights of the people to the whims of whoever controls the political process…. In sum, the apparently progressive introduction of the concept of “peoples” into the Banjul Charter could actually turn out to be counter-productive in some respects, that is, where the rights and interests of the people are not respected by the state…. In situations of despotic misrule, one of the first casualties is usually the economy, as the governors embark on orgies of personal enrichment…. [Using “people” in this sense] is not to take the ownership of natural resources away from the people; it is to give control to the country, so as to enable it effectively to protect and administer those resources for and on behalf of the people…. [On the other hand] “people” as all persons within a State [is important because] the corporate status of the state works very well, provided one is dealing with external matters and entities. Because of the inherent nature of states and governments, at this point in time, a distinction must be drawn (internally, that is) between the people and their state. This distinction, although not well demarcated in the Banjul Charter, is important to recognize. It is through this meaning that one can easily appreciate the duties of states toward their people, duties provided for in the Banjul Charter.
4.13 Commentators have also questioned the appropriateness of including a right of “peoples” in the context of a human rights treaty concerned primarily with the position of individuals. However, as Richard Kiwanuka put it, “because peoples’ rights are ultimately destined for individuals, they are ipso facto human rights.” Citing Louis Sohn, he emphasized:
In an interclub tennis tournament, only clubs have the right to participate even though individuals actually play the game. Members as skilled as Navratilova or Lendl would not have an automatic right to play in tournaments. Contestants are entered by their clubs in accordance with the internal arrangements of those clubs. The individual’s right to play can only be expressed in and through the club. This right is actualized, first, by protecting the club's rights in the wider setting; and then by the individual's rights in the club. International collective and individual rights are no different.
4.14 In the context of the International Covenant Economic, Social and Cultural Rights (ICESCR) for example, Richard Falk contends that the term “peoples” in the Covenant implies “that governments are the authoritative representatives of people, that they act in international institutions in a fundamental representational role, and that it is ultimately the legitimacy of the peoples that they represent, not their own expression of State interests, that is the underlying ground of their validity.” He goes on to argue that it is the legitimacy of peoples, rather than the transient and potentially dubious legitimacy of governments that constitutes the purpose and rationale for the instruments protecting human rights and for the whole idea of international solidarity. Thus, “states in this sense are an artificial and derivative political reality as compared to peoples.” According to James Crawford, given its entrenchment in human rights treaties such as the ICESCR, “the precedent for treating questions of permanent sovereignty over natural resources as rights of peoples, rather than as rights of States, is an established one.” He argues that the principle of permanent sovereignty over natural resources has the capacity of operating as a guarantee of peoples against their own governments, thus limiting the capacity of governments in the interests of the community. In his view, Article 21 of the African Charter makes a state’s natural resources policy justiciable in the African Commission.
4.15 In fact, the African Commission has provided further conceptual clarifications of “people” in the context of the African Charter. In a case involving Nigeria, the Commission found the country to have breached its obligations to respect, protect, promote and fulfill rights guaranteed by the African Charter, and held Nigeria to be in violation of several rights in the Charter, including the right of peoples to freely dispose of their wealth and natural resources. In that case, the petitioners alleged that the operations of the Nigerian military government through its state oil company, the Nigerian National Petroleum Company (NNPC) as majority shareholder in a consortium with Shell Petroleum Development Corporation (SPDC) had caused environmental degradation and health problems resulting from the contamination of the environment among the Ogoni people. The petitioners also alleged that the consortium disposed of toxic wastes in violation of applicable environmental standards and caused numerous avoidable spills near villages, consequently poisoning much of the region’s soil and water. Furthermore, they alleged that the Government aided these violations by placing the state’s legal and military powers at the disposal of the oil companies; and that the Government, through its security forces, killed innocent civilians and attacked, burned, and destroyed villages, homes, crops, and farm animals. Finally, the petitioners alleged that the Government failed to monitor the activities of the oil companies, provided no information to local communities, conducted no environmental impact studies, and prevented scientists from undertaking independent assessments.
4.16 In its decision, the Commission stated that the obligations of governments under the African Charter include obligations to respect, protect, promote and fulfill the guaranteed rights. It stated further that these obligations “universally apply to all rights and entail a combination of negative and positive duties.” According to the Commission, “there is no right in the African Charter that cannot be made effective.” As the Commission stated,
The State is obliged to respect the free use of resources owned or at the disposal of the individual alone or in any form of association with others, including the household or the family, for the purpose of rights-related needs. And with regard to a collective group, the resources belonging to it should be respected, as it has to use the same resources to satisfy its needs.
4.17 While holding that Nigeria has the right to produce oil, the Commission nonetheless held that the country had not protected several rights contained in the Charter, including the right of the people freely to dispose of their natural wealth and resources. It also held that the lack of involvement of the Ogoni people in the decision that affect them constitutes a violation of Article 21, and asked the Nigerian Government to ensure adequate compensation for victims of violations. As the Commission stated,
The Government of Nigeria facilitated the destruction of the Ogoniland. Contrary to its Charter obligations and despite such internationally established principles, the Nigerian Government has given the green light to private actors, and the oil Companies in particular, to devastatingly affect the well-being of the Ogonis. By any measure of standards, its practice falls short of the minimum conduct expected of governments, and therefore, is in violation of Article 21 of the African Charter.
4.18 One could thus assert that the African Commission does not equate the term ‘peoples’ with the state. Accordingly, Article 21 of the Charter could be seen to directly boost the rights and interests of the peoples within the state, and of the responsibility of the state to those peoples. Clearly, the decision by the Commission reinforces the recognition of a right to economic, rather than political self-determination. Thus, the power of the state to freely dispose of natural wealth and resources would be subject to the consent and interest of those within the state. In effect, the government must utilize the wealth and natural resources to benefit the whole population. As Michael Reisman puts it,
The point about the permanent sovereignty of peoples over their natural resources is not that the resources in question may not be mined and sold. Such doctrine would render them valueless. The point is rather that the national community in which the resources are found is to be a significant beneficiary of their exploitation. The nation-state is now expected to contribute to the welfare of all inhabitants, without even having the right to discriminate among them.
4.19 Kofele Kale adds,
Acts of indigenous spoliation violate, as it were, the mother of all rights. A people’s enjoyment of the other rights within the pantheon of human rights is dependent on their access to the national wealth. One cannot talk realistically of a fundamental right to life when this life can barely be sustained because it is cut off from the most basic necessities of food, shelter and medical care.
4.19 In the light of the above therefore, the Applicant contends that the right of peoples to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the state concerned. In effect, permanent sovereignty reflects the inherent and overriding right of a state to control the exploitation and the use of its natural resources. It is regarded as a prerequisite for economic development. Thus, the free and beneficial exercise of the sovereignty of peoples over their national resources must be furthered by the mutual respect of states based on their sovereign equality. Thus, the principle of state sovereignty is not absolute or without limits.
4.20 The Applicant also contends that by its nature, the exercise of the state’s right to dispose of wealth and natural resources for the benefit of the people implies an obligation of fidelity on the state, thereby establishing a fiduciary relation between the state or its agents, and the citizens. According to the BLACK’S LAW DICTIONARY, a fiduciary relationship is one,
Founded on trust or confidence reposed by one person in the integrity and fidelity of another. Such relationship arises whenever confidence is reposed on one side, and domination and influence result on the other…. Out of such a relation, the law raises the rule that neither party may exert influence or pressure upon the other, take selfish advantage of his trust, or deal with the subject-matter of the trust in such a way as to benefit himself or prejudice the other except in the exercise of the utmost good faith and with the full knowledge and consent of that other.
4.21 Commentators have attempted to describe those aspects of relationships that justify imposition of fiduciary relations or what Deborah DeMott has called “fiduciary constraints.” In general terms, the law governing fiduciary obligation addresses two questions: first, in what circumstances do fiduciary obligations apply? Second, what does the obligation require a person to do? If a person in a particular relationship with another is subject to a fiduciary obligation, that person (the fiduciary) must be loyal to the interests of the other persons (the beneficiary).
4.22 However, the fiduciary’s duties go beyond mere fairness and honesty; they oblige him to act to further the beneficiary’s best interests. Although one can identify common core principles of fiduciary obligation, these principles apply with greater or lesser force in different contexts involving different types of parties and relationships. Recognition that the law of fiduciary obligation is situation-specific should therefore be the starting point for any further analysis. Accordingly, fiduciary relations can be presumed or inferred from the factual circumstances of any given relationship. Although traditionally applied to prototypical fiduciary relations such as agency, and trust, fiduciary obligations have been frequently imposed in novel situations that go beyond these conventional categories. As Deborah DeMott explains,
Fiduciary constraint on a party’s discretion to pursue self-interest resists tidy categorisation… fiduciary obligation is [thus] a device that enables the law to respond to a range of situations in which, for a variety of reasons, one person’s discretion ought to be controlled because of characteristics of that person’s relationship with another. This instrumental description is the only general assertion about fiduciary obligation that can be sustained.”
4.23 Given the above discussion, and considering the inherent nature of the right of the state to freely dispose of its wealth and natural resources for the benefit of it own people, the Applicant contends that implicit in the exercise of this right by the state is an obligation of fidelity which establishes a fiduciary relation (a trust-like relationship) between the state and its agents, and their citizens.
4.24 Thus, implicit in the exercise of state’s right to dispose its wealth and resources is a duty not to act in any manner that would deny those rights or impair their enjoyment by the people.
4.25 This right entitles the Applicant and other Nigerians to information regarding the spending of recovered stolen public funds
4.26 By logical extension, the Applicant contends that such a fiduciary relation implies a generic duty to on the Respondents to ensure openness, transparency and accountability in the spending of public funds, including recovered stolen public funds.
4.27 The Applicant further contends that it is essential to bring the principle of fiduciary obligation more precisely within the human rights framework, and to ensure access to information if only to ensure that Nigeria’s wealth and resources are being utilized for to fulfill the human rights of Nigerians and ensure social and economic development.
4.28 Fiduciary obligation in the context of state’s right over national wealth and resources can be further defended on the ground of state’s voluntary undertakings (through ratification) under human rights treaties like the African Charter. Thus, states, including the Respondents have put themselves in a position, which demands that they act with fidelity in exercising the right to national wealth and resources for the benefit of the people.
4.29 In sum, being a fiduciary obligation, the exercise of a state’s right to dispose of its wealth and resources would be breached when states or their agents refuse to provide information on the spending of public funds including recovered stolen public funds.
5. Concluding remarks
5.1 It is hereby submitted that under the combined Articles 9, 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, the Respondents have violated the right of the Applicant and of other Nigerians to information; the right of the people not to be dispossessed of their wealth and natural resources and the right of the people to economic and social development.
6.2 On the basis of the above reasoning, principles, legal and judicial authorities, the Applicant urges the Honourable Court to grant the following reliefs:
C. A DECLARATION that the failure and/or refusal of the Respondents to individually and/or collectively carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website, is illegal and unlawful as it violates Articles 9, 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act
D. AN ORDER OF MANDAMUS compelling the Respondents individually and/or collectively to carry out a transparent auditing of the spending of the recovered stolen public funds since the return of civil rule in 1999, and to publish widely the outcome of such auditing, including on a dedicated website
Dated this……………day of………………………..2010
…………………………………
ADETOKUNBO MUMUNI ESQ
SOCIO-ECONOMIC RIGHTS & ACCOUNTABILITY PROJECT (SERAP)
4 AKINTOYE SHOGUNLE STREET OFF UNITY ROAD IKEJA LAGOS
FOR SERVICE ON:
THE DEFENDANTS
His Excellency Alhaji Umar Yar’Adua
PRESIDENT OF THE FEDERAL REPUBLIC OF
NIGERIA
Commander in Chief of the Armed Forces
Office of the President
Aso Rock
Abuja,
ATTORNEY GENERAL OF THE FEDERATION
Federal Secretariat Towers (5th & 10th floors),
Shehu Shagari Way, Central Area,
P.M.B. 192, Garki
Abuja
ACCOUNTANT GENERAL OF THE FEDERATION
C/O
ATTORNEY GENERAL OF THE FEDERATION
Federal Secretariat Towers (5th & 10th floors),
Shehu Shagari Way, Central Area,
P.M.B. 192, Garki
Abuja
AUDITOR GENERAL OF THE FEDERATION
C/O
ATTORNEY GENERAL OF THE FEDERATION
Federal Secretariat Towers (5th & 10th floors),
Shehu Shagari Way, Central Area,
P.M.B. 192, Garki
Abuja
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