Kolawole Oluwadare is the Deputy Director of Socio-Economic Rights and Accountability Project (SERAP). In this interview, he speaks on various issues including the recent judgement of the Federal High Court for the Federal Government to account for the $5 billion recovered loot from late General Sani AbachaAbacha.
Why did SERAP take the Federal Government to court over the Abacha loot?
It was a follow-up to the freedom of information request that we sent to the government in 2020. Naturally, we should have got a response within seven days and that was against the backdrop of a tranche of Abacha loot that reportedly come in at that time. So, failing to answer the request, we went to court and unfortunately, it ended up as one of those public interest litigations that would have to do with compelling government to do the right thing.
Three years down the line, we got the judgement but basically, it shows the failure, lack of transparency and accountability in the management of public funds. It is just important now because these funds, you can call them windfall because it is something that comes in at the least expected time but it is also important that we understand how these funds have been managed.
How did SERAP arrive at the conclusion that the Abacha loot is the sum of $5 billion and the court has ruled that within seven days, the Ministry of Finance should respond. If the ministry fails to do so; are you going to approach the court again to file contempt charges?
The inconsistency in this amount is what has led us to where we are presently and even leading to the freedom of information request that we sent out. I recalled that the BBC had done infographics some years ago and they accounted for more than $3 billion at that time. And then Transparency International also issued a report giving an estimate of $5 billion last year. But the issue is, the Nigerian government should tell us the amount that is left from the Abacha loot, which is why it forms part of the freedom of information request for the Nigerian government to tell us how much that is left in the treasury of this country by way of the theft of Abacha government.
We do not have the figure, at least not in the public domain and that sets the background for even repatriation to know whether what we even heard is a less insignificant percentage of what has left the country.
That leads us to how much we have got back in the country and those that we expect.
On the second issue you mentioned, it is quite unfortunate that the dysfunctional governance has led us to this point where we begin to think of other means to enforce the judgement of the court. The judgement is clear on the face of it and every responsible government and in this instance, the executive should obey orders of court. The dysfunction has gone on for so long that we have begun to transfer the job of implementing a judgement to either the applicant or to the judiciary. And I see no reason why the government should not implement this judgement.
The records are there and when the Ministry of Justice or Ministry of Finance says they do not have the records of how much that has come in, then they are lying. One of the Attorneys General in the past had issued a statement mentioning figures without specifics of how much they are and how they are to be spent. So, I believe that this record exists in these two agencies of government and it is a matter of political will to put them to the public. If they don’t do it, of course, there are legal mechanisms that we can resort to, which we do not really think we have to do in this instance.
Can you tell us how the Federal Government denied you access to the information you sought despite applying the Freedom of Information Act?
I will say in our experience, we do issue a lot of freedom of information requests but the response rate is less than 10 per cent. And the positive response is less than two per cent. This shows the challenges that we have in transparency and accountability as a key part of good governance, particularly in the kind of democracy that we have. The laws are very clear and you don’t need to be a lawyer to understand what is in the FoI. The Act is very short and it takes its root from the freedom of expression provisions in the constitution in section 39. So, it means that public institutions should keep records and it is one of the provisions of the FoI. It also means that they should proactively disclose such information, which means that SERAP needs not go to court in the first place for this kind of information.
If it is a law in Nigeria, why should you go to court to talk about the law and people violating the law?
We shouldn’t have got to court in the first instance and in this case, the second respondent, the Office of the Attorney General was in the court and they filed a defence. I’m happy the court saw through all that.
Section 7 of the FoI says a public institution can refuse to give information but it must provide reasons for doing so and you have the recourse to go to court, that is why you went to court and the court has ruled in your favour. If you get the response you are asking for from the Ministry of Finance, what is the next step?
On the issue of Section 7, as the lawyers would say, a law is ready in its entirety not in isolation. But even in instances where public institutions can withhold information, there are various provisions like Section 11 and Section 24 that still balance Section 7 in the public interest. And in this instance, how would the government justify that it is in the public interest not to disclose this information? It is very hard to make that argument. That is why this case in the first place is in the public interest and part of the prayers of SERAP is not only to write but to publish by every means available as provided in the Freedom of Information Act. The aim of SERAP is in the public interest and to make sure that Nigerians have access to this information and are able to use it to hold those in office to be accountable.
It is not enough for government to say for instance as the government released last year that 1.9 million households have benefited from the social safety net programme to lift people out of poverty, incidentally, that same month. The Nigerian Bureau of Statistics brought out its report that more than 133 million Nigerians are poor. How can you justify that? The aim is to ensure transparency and accountability so that Nigerian citizens can own this drive for good governance by holding the government to account. It is not about SERAP but about the citizens and people of this country holding the government to account for public funds.
What are those provisions that say that public institutions might not give out information and on what grounds?
The FoI is a beautiful piece of legislation but what we have always found in this country and we have a lot of precedent to show; that is the impunity and inefficiency that works in public institutions. It is the lack of political will from the highest office in the land to the lowest that has made those laws look redundant. So, the laws are not the problem. The problem is to ensure that people are held accountable. If you look at the FoI for instance, because the law is forward-looking, it can anticipate that there are maybe good reasons why public institutions should not release information, for instance, national security and classified information.
But for every mention of those things in the FOI Act, there is always a sub-section that says that it is a judge that determines the public interest. It is not for the public institutions to determine that based on national security, which they use a lot to cover wrongdoings in Nigeria. So, the FOI Act is not the problem but the public officers and those public institutions that are the problem.
Why is it that even with the FoI Act, Nigerian civil servants and the people in charge still think that the Official Secret Act is something to which they are committed?
It still bothers me that the institutional mindset is driven by those who are responsible as chief executives of those institutions. We have been engaged with all these public institutions sometimes as part of our capacity-building initiatives and I don’t think it is a lack of information about how the FoI Act works; by the way, the FoI has repelled the sections of the Official Secrets Act. It is about the political will and the body language of the President. So, if people begin to read the body language of the president, what do you think happens at the ministries and agencies of the government? It means people would begin to read the body language of the ministers and heads of those institutions. And because they do not see that commitment to building good governance and accountability, what do you expect those individuals to do?
We’ve had instances where we engage with public institutions and the junior officers come to us to say we believe what you are doing is right. Of course, he works in a public institution where he cannot go against what is going on there. So, it is not because they do not know, it is not because the law is wrong, it is to establish good governance as an institution and the impunity we have seen over the years, which, of course, we stand to end because I’m a lawyer and the disobedience in the judgement of courts send a wrong signal down the line. It simply tells public officials that you can do anything to go against the law and nothing would be done about that. The FOI Act makes it an offence and unlawful to withhold information and the judge says that much.
What are the other cases SERAP is pursuing in court because you are permanently in court, particularly with regard to the recent election and the ongoing post-election process?
I think that we have focused too much on the democratic process and left governance as a key issue. Yes, we go to polls every four years but governance is a continuum and it is even the aspect of governance that determines what happens at the poll. So, the emphasis should be on governance, which is why we focus on various government mechanisms that drive even the election, politics and the vital aspects of democracy. A good case in point would be the payment of pensions to the former governors and their deputies and also the issue of double emolument, which is a drain on our resources, which translates to the level of poverty we have seen, the rising cost of living and the cost of governance. We need to tackle those issues.
(THE SUN)
