An Ikeja Division of the Lagos State High Court on Tuesday ruled that the Freedom of Information (FOI) Act, 2011, is applicable to the Government of Lagos State and does not require “domestication” by the state to have effect.
Justice Beatrice Oke-Lawal, while dismissing a preliminary objection raised by the Lagos State Ministry of Health in a suit instituted against the Ministry and the Lagos State Government by Media Rights Agenda (MRA) over its failure to disclose records and information requested by the organisation under the FOI Act, held that the Act was validly enacted by the National Assembly and applicable to the federal and state governments.The suit arose from a Freedom of Information request made by MRA in November 2016 to the Ministry, asking for:
· Details and copies of plans put in place by the institution to provide the Araromi Zion Estate located in Akiode Area of Ojodu Local Council Development Area (LCDA) with health care services;
· Details and copies of plans put in place to provide the Araromi Zion Estate with health care services taking into consideration the peculiar needs and circumstances of the community;
· Details of any research or assessment carried out on the needs of the community and its residents as well as copies of relevant research or assessments report or reports;
· An outline of the timeframe for the implementation of the plans, if there are plans to provide the Estate with primary health care facilities, and
· Details of the budgets and costs estimates for the implementation of the plans, if any.
Following the failure of the ministry to respond to MRA’s request despite a reminder issued to it, the organisation, through its lawyer, Mosunmola Olanrewaju, filed a suit against the ministry and the Attorney-General of the Federation asking the court to declare that the ministry’s refusal to provide it with the requested information is wrongful and to compel the disclosure of the records and information to the organisation in accordance with the FOI Act.
However, the ministry filed a notice of preliminary objection to the suit in which it contended that the court had no jurisdiction to determine the suit and asked that the suit be struck out on the grounds that:
· The substance of MRA’s case is not contained in the Exclusive Legislative List under the Second Schedule to the 1999 Constitution to confer exclusive power on the Federal Government to make the FOI Act for the Federation;
· MRA’s grievance is against the Lagos State Government which is not an agency of the Federal Government;
· Even if the FOI Act is applicable to Lagos State, MRA’s application for judicial review was filed outside the 30-day time limit stipulated by section 20 of the Act; and
· The Lagos State Ministry of Health is not a juristic person that can sue or be sued.
Ruling on the ministry’s preliminary objection, Justice Oke-Lawal noted that three issues arose for determination in the matter namely, whether the FOI Act is applicable to Lagos State, whether MRA was out of time in filing the suit and whether the Lagos State Ministry of Health is a juristic person.
On whether the FOI Act is applicable to Lagos State, after an analysis of Section 4(5) and (6) of the 1999 Constitution (as amended), the judge ruled that the National Assembly has the power to make laws for the peace, order and good government of the federation on any matter included in the Concurrent Legislative List, adding that if any law enacted by a State House of Assembly is inconsistent with any law made by the National Assembly, the law made by the National Assembly would prevail.
She said based on the provisions of these sections of the Constitution, she was of the opinion that the wordings of the Constitution are clear as to the powers of the National Assembly to make laws for the federation as long as the issue is within the Concurrent and Exclusive Legislative lists.
The judge’s decision is seen as a blow for the Lagos State government, renowned for ignoring FOI requests on its activities from journalists and civil society organizations.
The judge also upheld Mrs. Olanrewaju’s argument that the FOI Act was validly enacted by the National Assembly and as such applicable to the federation and that it is not dependent on states adopting it for it to become applicable in such states.
She cited, in support of her position, the decisions of the Supreme Court dismissing similar challenges made to the validity and applicability of the Economic and Financial Crimes Commission (EFCC) Act and the Independent Corrupt Practices and other Related Offences Commission (ICPC) Act to the states.
Justice Oke-Lawal, therefore, held that the FOI Act applies to the federal and state governments.
On whether MRA was out of time when the organisation filed its suit against the Ministry and the State Government, the judge said having critically examined the processes filed by the parties to the suit, going by the date MRA’s freedom of information request was made and the date the originating processes were filed by MRA, it was clear that when it filed the suit, the organisation was within the time stipulated by the FOI Act for filing an application for a review of the decision of any public institution not to disclose requested information.
On the argument of the Lagos State Ministry of Health that it is not a juristic person that can sue or be sued, Justice Oke-Lawal said there was no evidence to support the claim that the ministry is not a juristic person. She upheld the submission of Mrs. Olanrewaju that the creation of Lagos State by the State (Creation and Transitional Provisions) Decree No. 14 of 1967, on May 27, 1967 automatically conferred legal status on the ministry as one of the institutions that took off with the state.
She ruled that the preliminary objection raised by the ministry lacked merit and accordingly dismissed it.
Anambra State Chief Judge, Justice Peter Umeadi, has been elected into the Governing Board of the World Jurist Association (WJA).
The Nation gathered yesterday that Justice Umeadi was elected at the WJA’s 25th Biennial Congress with the theme: “Energy: Peace and Justice for All”. The congress held in the Caribbean Island of Aruba.
Justice Umeadi’s election has made him the National President of the Nigerian chapter of the WJA. It also qualifies Nigeria to host the next WJA’s biennial meeting, scheduled for October 2019, which would make Nigeria the first African country to host WJA meeting.
Also elected as members of the association’s board of governors are Franklin Hoet Linares, from Venezuela, as President; T. A. O. Kaiyuan, from China, as First Vice President; Saeed Zayed Alshamsi, from United Arab Emirates, as 2nd Vice President and Glendeline Croes, from Aruba, as 3rd Vice President.
Others are Jacinto Soler Padro, from Spain, to represent World Association of Lawyers; Alberto Jurado, from Venezuela (World Association of Law Professors) and Alexander Low, from Germany, (World Association of Business Associates).
Established in1963 in reaction to global clamour for a free and open forum where judges, lawyers, law professors and students world over, could collaborate to strengthen and expand the concept of Rule of Law and its institutions globally.
The main purpose of the Aruba congress, according to the organisers was to integrate, as one of the resolutions of the Declaration of Aruba, the consecration by consensus of a new universal Human Right: The Right of Access to Sustainable Energy to Facilitate Long Term Development.
As a non-governmental organisation with special consultative status at the UN Economic and Social Council, the WJA provides a unique forum for the international community.
With nearly 50 years of accomplishments, the WJA is one of the few organizations working with a broad range of stakeholders to promote the Rule of Law as the path towards world peace.
Its members include sitting and retired Chief Justices, judges, government officials, law professors, lawyers and students from over 140 different countries.
WJA has National Presidents in 85 countries, with a Board of Governors that represents every continent and aspect of the legal profession.
A legal practitioner Chibuzor Ezike has petitioned the Commissioner of Police in charge of the Federal Capital Territory Mr Sadiq Bello, over the prolonged detention of a citizen despite a bail granted by a court.
Ezike, in two separate petitions dated November 13 and 23, 2017, accused the police of acting in impunity and abuse of the human rights of Ekene Ubadire, Obinna Ebiko and Confidence Istifanus.
The three were arrested on the streets on allegations of attempted theft and were detained at the Special Anti-Robbery Squad (SARS) in Abuja from mid October.
They were eventually charged before an Upper Area Court, Karimu and were granted bail on October 27, 2017. Despite perfecting the bails, the suspects were not released as directed by the court.
“We assumed you were not aware of the impunity and the illegality complained about in the said letter but to our utmost chagrin, 10 days after the issue was brought to your knowledge these innocent citizens are still wallowing in the SARS detention facility,” he said.
“In view of the foregoing we most respectively register our disappointment against the force and once again we request for the immediate release of the defendants in strict compliance with the order of the court as there is no justification whatsoever for their continuing detention,” he added.
With the National Judicial Council NJC Committee on the Monitoring of Corruption Cases set to commence sitting, it has resolved to produce new practice directions that will fast-track the trial of cases involving corruption and financial crimes.
NJC’s Director of Information, Mr Soji Oye, in a statement Sunday said the committee took the decision after its meeting in Abuja last week.
Oye said the committee has also concluded plans to meet with the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and Other Related Offences Commission (ICPC) in furtherance of its mandate.
Also, NJC announced that the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, has directed all heads of court to designate courts and judges that would solely handle the on-going trials on a daily basis in order to fast-track all the pending corruption cases.
The practice directions sub-committee of the committee has already commenced a review of various practice directions of the courts by leveraging on both local and foreign comparative jurisdictions to meet global best practice.
The committee said it was imperative that other critical stakeholders buy into the mission of the body, saying that regular updates and advocacy postings on activities of its sub-committees must be a permanent feature of the project.
The NJC added that the 2,306 on-going corruption cases nationwide had already been submitted to the committee.
However, some chief judges of state high courts were yet to transfer such cases to the CJN for onward transfer to the committee.
“Chief Judges of State Divisions who were yet to submit the list of alleged corruption cases to the committee are reminded to do so without delay,” Oye said in the statement.
The committee directed its secretary, Gambo Saleh, who is also the NJC secretary, to write to the defaulting chief judges.
To facilitate its work, the committee was divided into four sub-committees.
The sub-committees are Practice Directions, Training, Feedback and Engagement, and Awareness.
After Justice Ayo Salami (rtd) had rejected the chairmanship of the committee, Justice Suleiman Galadima, who recently retired from the Supreme Court, was appointed to replace Salami.
The committee also divided the country into three zones for ease of monitoring and evaluation of the said cases.
The zones are: Zone A – Abuja FCT, Zone B – Northern Zone and Zone C – Southern Zone.
At the last count, Zone A in Abuja had 554 pending cases, Zone B had 347 cases while Zone C had 1,405 cases.
The committee, after brainstorming on all the pending alleged corruption and financial crime cases submitted to it by the Heads of Court that had complied, further indicated that new practice directions would be issued to judges handling the said cases.
No date has been fixed for the planned interface with the anti-corruption bodies.
The Attorney General and Commssioner for Justice, Plateau State, Jonathan Mawuyau, has said with its domestication of the Child Rights Act, the government would deal decisively with parents who maltreat their children.
The official said this, Friday in Jos, at the unveiling and dissemination of the state’s Child’s Right Law gazetted by the justice ministry in the presence of UNICEF officials
The gazetted law prohibits child marriage, child betrothal, tattoo and skin marks on children, abduction, removal and transfer from lawful custody without the consent of his parents.
Mr. Mawuyau, said the domestication of the Act will bring to an end, cases of child maltreatment all over the state.
“Any parent who maltreats his or her child will be made to face the full wrath of the law”, the official said.
He added that the law does not give ”permission to children to terrorise their parents and other adults in the society.”
“The law is not meant to allow children rebel against their parents and guardians”, he said.
According to Mr. Mawuyau, the law will ensure harmonious relationship between parents and their kids and better welfare for children.
Despite the fact that Nigeria;s child rights law was enacted in 2005, a lot of child abuse related cases are still being reported in the state.
Similarly, the state commissioner of police, Adie Udie, charged the Nigerian govenment to wake up to the global responsibiities of protecting the rights of children.
The commisioner, who was represented by a deputy commissioner of police, Yahaya Abubakar, lamented that issues of the Nigerian child were not taken serious by stakeholders.
“The Nigeria government has failed the child. Each day, people talk about human rights, but the Child’s Right Act should have been domesticated in all the states of the federation and implemented fully, but just a few state governments have done that”, he said.
The Child’s Right Act has 273 sections divided into 25 parts.
First, it was the Panama Papers; now the Paradise Papers. Both were scandals involving prominent people around the world who hide their wealth in tax havens. In both cases, investigative journalists leaked huge data that disclosed the names of those engaged in this activity. Unsurprisingly, both leaks included the names of prominent Nigerians. However, while the scandals triggered widespread outrage worldwide, with more than 70 governments launching probes, in Nigeria, official and public reactions were muted, even nonchalant. Nigeria, it would seem, is remarkably blasé about the dangers of dirty money.
I mean, consider the reactions in other countries. In Iceland, public unrest triggered the resignation of its prime minister over his undisclosed holdings. In Britain, 66 criminal investigations were launched, and the then prime minister, David Cameron, although did nothing wrong, was forced by a hostile public to publish his tax returns for the previous six years simply because his late father had an offshore unit trust in Panama. And in Pakistan, Prime Minister Nawaz Sharif was forced to resign as the leak exposed his family’s hidden assets in the havens. These are just a few examples of the backlash across the world.
The global response signalled a strong disapproval of secrecy havens. In their book, “The Panama Papers: Breaking the story of how the world’s rich and powerful hide their money”, the two journalists who leaked the offshore scandal, Bastian Obermayer and Frederik Obermaier, argue that financial manoeuvres through secrecy havens are “not just a private matter; they are a problem for the whole world”. They are right, of course.
And here is why. Tax havens provide secrecy space that allows for activities that are morally questionable, and even criminal. Last year, after the Panama Paper exposure, 300 economists, including Nobel Laureates, published an open letter arguing that there is no economic benefit to tax havens. So, why would anyone hide money in them? Well, the answer is that in most, if not all, cases, the aim is to launder money, evade tax or conceal assets. All of which, without a doubt, make the use of secrecy havens not just a private affair, but a matter of legitimate public interest.
Yet such issues are treated almost as private matters in Nigeria. For instance, all the public officers, past and present, named in the Panama Papers simply shrugged it off. Take the Senate President, Bukola Saraki, who was named in both the Panama Papers and the Paradise Papers. He refused to resign, and, in fact, insisted he did nothing wrong. Nigeria is probably the only country where the head of the highest law-making body can have undisclosed assets in secrecy havens around the world, and yet stay in office!
But what about the government? As I said above, the Panama Paper leak led more than 70 countries to launch probes or criminal investigations. But not in Nigeria! Recently, the minister of finance, Kemi Adeosun, said that the federal government would investigate Nigerians linked in both the Panama and Paradise Papers with having offshore accounts in tax havens. She said their tax declarations would be checked to see whether they paid the applicable taxes before transferring funds or assets to a tax shelter.
Lest we forget, the Panama Papers were leaked in April 2016, nearly two years ago! So, why has there been no investigation or probe so far? Of course, no investigations would take place, or, if they did, lead anywhere. Nigeria is a country, where, for political and other reasons, some people are untouchable. The Buhari government is losing its anti-graft “war” precisely because it has been politicised, and hijacked by powerful individuals. The ongoing face-off between the State Security Service (SSS), the National Intelligence Agency (NIA) and the Economic and Financial Crimes Commission (EFCC) is evidence of what happens when a campaign to fight corruption lacks institutional credibility. Thus, in that context, the idea that the offshore activities of powerful Nigerians could be probed sounds hollow.
Yet, there is a real problem, not only of tax evasion but of money laundering. In 2015, Nuru Ribadu, former chairman of the EFCC, made a mind-boggling statement that “Everything that is wrong about Nigeria has to do with dirty money”. He added: “When I look around, I see a lot of investment done with dirty money”. Of course, as a former chairman of the EFCC, Ribadu should know about such things. But does the government agree with him? For if it does, it would swiftly seize on any information about the hidden assets of Nigerians in secrecy havens and establish serious probes for evidence of illicit financial outflows.
All of this matters, of course, because Africa, particularly Nigeria, suffers chronically and acutely from illicit offshore activities. In a recent online course, Professor Paul Collier of Oxford University discussed the nature and extent of the problems, which he described as the “bad and ugly of private capital outflows in Africa”. The first is the outflows of money that should have been taxed, but isn’t; the second is the outflows of corrupt money, stolen funds stashed away in havens, and that can’t be traced because they are protected by walls of secrecy. Professor Collier said that Africa is losing $200 billion a year in the two outflows.
Of course, Nigeria accounts for much of that loss. Nigeria is a country that has a serious challenge with raising taxes, and a serious problem of tax evasion. According to one estimate, tax as a share of non-oil GDP in Nigeria is only 3%. Apart from the skulduggery of the tax-dodgers, the truth is that there is a huge asymmetry of information between Nigeria’s tax authority and those, companies and individuals, expected to pay taxes. What’s more, Nigeria lacks the ability to build a really skilled and incorruptible team of tax collectors. Although the Federal Inland Revenue Service, FIRS, has improved since Babatunde Fowler became its executive chairman, the capacity deficit is still significant.
Nigeria also faces an acute challenge with the second form of illicit capital outflows, namely stolen money laundered abroad. It is widely estimated that Nigerians have siphoned several billions of dollars overseas. President Buhari has always harangued and called on the world to return Nigeria’s stolen money. Indeed, at the first international anti-corruption summit held in London last year, it was agreed that a Global Forum for Asset Recovery would be set up to begin the process of returning stolen assets to Nigeria and a few other countries. That, of course, is easier said than done, not least because of the logistical and legal nightmares.
Surely, the pernicious problem of illicit financial flows requires global actions, such as creating public registers of beneficial ownership, automatic global exchange of information about bank accounts and, indeed, the blacklisting of tax havens. However, a lot must be done at home to tackle the problems of tax evasion and outflows of corrupt money. Sadly, Nigeria is not doing enough domestically.
To be sure, on tax evasion, the Voluntary Assets and Income Declaration Scheme (VAIDS), launched by the Buhari government, is a good idea in principle. But, in Nigeria, such campaigns only have any impact, if at all, on the small fries, not on the big fishes, the powerful and influential. Exhortation is, of course, important, but it’s certainly not enough. Some big and high-profile tax-dodgers must be scapegoated to send powerful signals about the government’s no-nonsense intentions.
On the problem of illicit wealth, well, my view, previous expressed in this column, is that Nigeria’s asset declaration system is not fit for purpose. It doesn’t achieve wealth monitoring. Sometime ago, the vice president, Yemi Osinbajo, said the government would ensure past and present public officers account for their wealth. Any progress on that? Why has Nigeria not introduced, as the UK has done, Unexplained Wealth Orders? And where is the stringent anti-money laundering law and enforcement regime?
Truth is, despite its moralisation and preachiness, the Buhari government is insouciant about tackling illicit capital outflows. Its lukewarm response to the offshore scandals betrays its lax attitude to the scourge of dirty money.