The issue of making public the asset declarations of public office holders has always been controversial. The Code of Conduct Bureau (CCB) has reiterated its stance that it is illegal to release or publish asset declarations of public officeholders.
In letters dated 30 March 2021, Munirah Elabor, the chairman of the Code of Conduct of Bureau rescinded the request for access to the asset declaration documents of Senator James Manager; NDDC interim administrator, Effiong Okon Akwa; and Hamza Ibrahim Jamo. This is in spite of the provisions of the Freedom of Information (FOI) Act of 2011 that mandates public offices like the CBB to make records and other vital information of public interest freely available to the public.
The FOI Act, enacted by the Goodluck Jonathan administration, places access to vital information held by public authorities as a fundamental element of the right to freedom of expression as provided under Section 39 of the Constitution. Before the introduction of the FOIA of 2011, vital information useful to the public had been seemingly difficult to access.
According to the CCB, “It is conceded that section 1 (1) 3 and 4 of the Freedom of Information Act (FOIA) 2011 guarantees the right of a person to access or request information whether or not in written form, in the custody of any public agency.
“Conversely, by virtue of section 12 (1)(a)(v), 14(1)(b) and 15(1)(a) of the same act, the bureau is not under any obligation to grant any request which constitutes an invasion of personal privacy. Asset declarations by public office officers contain such personal information which falls within the exemption of the disclosure of information in the FOIA”, the letter by CCB read.
Further making reference to paragraph 3 (c) of the third schedule of the 1999 constitution, the Bureau agreed it has been mandated to make asset declaration of public holders available for public inspection but claimed that the National Assembly had not prescribed terms and conditions under which that could be done.
Public observers have equally berated the CCB’s stance which runs counter to the circumstances that led to the removal of former Chief Justice of Nigeria, Walter Onnoghen. According to them, the CCB some two years ago did not take into cognisance the privacy of the former CJN before expeditiously providing his asset declaration data to Anti Corruption and Research Base Data Initiatives: the body that filed the petition that led to Mr. Onnoghen’s removal.
It is imperative to note that the Socio-Economic Rights and Accountability Project had filed a suit in court against the Code of Conduct Bureau to disclose details of asset declarations submitted to it by successive presidents and state governors since the return of democracy in 1999.
The suit number FHC/L/CS/1019/2019 filed in June 2019 followed the CCB’s claim that it could not disclose details of asset declarations submitted to it by successive presidents and state governors because doing so “would offend the right to privacy of presidents and state governors.”
According to SERAP, asset declarations of presidents, state governors, and other public office holders submitted to the CCB are public documents. The group noted that the necessary implication of the rule of law is that a public institution like the CCB can only act in accordance with the law, as to do otherwise may enthrone arbitrariness.
There are strong arguments that democracy cannot flourish if governments operate in secrecy, no matter how much open discussion and debate is allowed. SERAP had noted in its 2019 suit that the very nature and quality of public discussion would be significantly impoverished without the nourishment of information from public authorities such as the CCB.
Pundits have also stated that disclosing details of asset declarations of public officers such as presidents and state governors would improve public trust in the ability of the CCB and other related agencies to effectively discharge their mandate.
The subject of assets declaration has always been about transparency laden in the fight against corruption. Declaration of assets constitutes a powerful tool to fast track and prevents corruption. It has been used to detect illicit enrichment and prevent conflicts of interest. Over 150 countries across the world have introduced asset disclosure requirements for public officers. This is according to the World Bank. A good number of these countries make asset declarations available for public scrutiny.
Analysts asseverate that public access to declarations multiplies their anti-corruption value, as civil societies and journalists often play a crucial role by uncovering irregularities and triggering formal verification of declarations by anti-corruption/asset declaration agencies. They posit that prevention of corruption and exposing the unexplained wealth of officials are serious and legitimate public interests. There are as such strong convictions that as far as officers have agreed to work in public offices; nothing should be left private again, since they are entrusted with the duty to manage public funds, among other public functions.
Scholastic findings have equally shown that public access to asset declaration is associated with lower levels of perceived corruption. Country experiences also indicate that public access can greatly increase the ability of disclosure systems to deliver premium and effective results on governance.
It is important to mention at this juncture that the court that dismissed SERAP’s suit noted that it agreed with the CCB’s position that the duty to make the asset declaration form of public officer available for any person or institutions and for whatever purpose is dependent upon terms and conditions to be proscribed by the National Assembly.
The court held that it was the duty of the National Assembly to proscribe the way and conditions for the release of asset declaration for inspection and to achieve this; the National assembly has to pass an act to that effect, which has not been done. The court further held that the terms and conditions to be proscribed by the National Assembly must be specific and related to the asset declaration of public officers and not legislation of general nature such as the freedom of information Act, 2011.
Public disclosure of the private assets of public officials and family members ordinarily should not clash with the rights to privacy and data protection. Both rights are not absolute and can be restricted provided there is a basis in law and legitimate interest that justifies the restriction. It is thus expeditious that the National Assembly starts considering the option of laying the necessary parliamentary framework to fill these lacunas so to fast-track the fight against corruption.