The federal government has told the Federal High Court in Lagos that
the record of spending of N388.304 billion London Paris Club Loan
refunds by 35 “is protected by professional privilege, and therefore
confidential.”
The federal government through the Accountant General of the
Federation, Ahmed Idris, was responding to the suit number FCH/CS/523/17
filed by Socio-Economic Rights and Accountability Project, SERAP,
seeking “an order of mandamus directing and/or compelling the government
to publish details of spending of N388.304billion London Paris Club
Loan refunds allegedly diverted and mismanaged by 35 states.”
President Muhammadu Buhari recently lamented that despite the refund
to states and other bailout funds, many states still owed several months
of workers’ salaries and pensioners’ entitlements.
The federal government’s response filed last Friday followed the
ruling in June by Justice Muslim Hassan that SERAP could proceed with
the legal challenge to unravel how exactly 35 states spent Paris Club
loan refunds. Justice Hassan had while granting leave stressed that it
was important for the authorities “to come and tell us how they spent
our money.”
However, in its defence, the federal government argued that, “The
relationship between the Accountant General and the 35 states is
professional and confidential. It is a fiduciary one akin to that
between a bank and its customer and allied professionals. On that score,
record of the spending of N388.304 billion London Paris Club Loan
refunds by the 35 states is exempted from publication, assuming the
Federal Government has the information sought by SERAP.”
The government also argued that, “The Accountant General does not
have custody or possession of the information or record relating to the
spending of N388.304 billion London Paris Club Loan refunds by 35 states
which the government gave them. The Accountant General did not release
the funds to the states. At the risk of sounding like a broken record,
the Accountant General argues that assuming we have the information
sought, the government is not obliged to comply with the request.”
The government argued that, “States have exclusive control over their
revenue and expenditure and the Accountant General of the Federation
cannot demand obligatorily from any tier of government including the 35
states information how they have spent the Paris Club refunds.”
According to the government, “SERAP has the right to the information
sought but not to request that the information be passed to the Attorney
General of the Federation. In any case, the Accountant General has no
record of the spending of N388.304billion London Paris Club Loan refunds
by 35 states and therefore cannot be compelled to release the record,
as the court does not act in vain. An order of mandamus should not be
issued because it will be unnecessary and not effective and will not
serve the purpose.”
Responding, SERAP argued that, “Due to non-payment of overdue
pensions and salaries of workers by the states, citizens have continued
to languish in untold hardship and poverty. Therefore, there is
compelling public interest in knowing how exactly the Paris Club loan
refunds were spent by the 35 states. There is also no professional
relationship or privilege between the Accountant General and the 35
states as to warrant any duty of confidentiality on the part of the
Accountant General.”
According to SERAP, “There must be transparency and accountability in
the spending of the refunds, in line with the principle of Open
Government Partnership (OGP) to which Nigeria is a signatory. In
addition, section 15(5) of the Constitution of Nigeria 1999 (as amended)
provides that the state shall abolish corrupt practices and abuse of
power. Citizens must be able to access the performance of government,
and this depends on access to record about spending of the refunds by
the 35 states”.
The civil society organisation also argued that, “Assuming without
conceding that the Accountant General does not have record of spending
of N388.304 billion London Paris Club Loan refunds by the 35 states,
nothing stops the Accountant General from working with other
agencies/ministries to release information on the spending, especially
being the Chief Accounting Officer of the Federation, and
constitutionally charged with the overall responsibility of keeping and
managing all the receipts and payments of the Federal Government.
“The Accountant General cannot therefore say he is unaware of the
spending of the refunds by the states. Otherwise, this would mean that
the Accountant General is lacking in his duty as Chief Accounting
Officer of the Federation.”
SERAP’s response read in part: “The Accountant General has a duty
under section 2(2) of the FOI Act to keep and maintain records, and to
proactively disclose information without SERAP even requesting it. A
basic principle behind the FOI Act is that the burden of proof falls on
the body asked for information in this case the Accountant General, and
not the person asking for it. The person making the request does not
have to explain their actions.”
“The government’s counter-affidavit constitutes objection and legal
argument, and therefore same ought to be disregarded by the court as it
offends section 115 of the Evidence Act. Besides, any control by the 35
states over the spending of Paris Club Loan refunds is not absolute, and
in fact subject to scrutiny by Nigerians.”
“The Accountant General owes no duty of confidence to the 35 states
but rather to the entire citizens of Nigeria. Disclosure will not
constitute an actionable breach of confidence if there is a public
interest in disclosure which outweighs the public interest in keeping
the information confidential.”
“The FOI Act does not say that the information requested can only be
issued to the person making the request nor does it say that SERAP
cannot request information for the use of another person, especially
when that person is the Attorney General of the Federation who is
constitutionally obliged by law to act in the public interest, including
in matters relating to the spending of the Paris Club Loan refunds by
the 35 states.”
“The intention of the drafters of the FOI Act as shown in its
preamble and its sections is to allow access to information, enhance and
promote transparency, accountability, openness, justice and
development. Therefore, all public officials including the Accountant
General ought to strive to ensure the effective implementation of the
FOI Act.”
Earlier, the motion on notice was set for September 14 for the
hearing of argument on why the government should not be directed and
compelled to publish details of projects on which the Paris Club loan
refunds were spent. But the government has now filed a counter-affidavit
and brief of arguments, claiming among others that the matter was
confidential.
The federal government released N388.304 billion of the N522.74
billion to 35 states as refunds of over-deductions on London-Paris Club
loans. The amounts received by the states are as follows: Akwa Ibom
N14.5 billion; Bayelsa N14.5 billion; Delta N14.5 billion; Kaduna N14.3
billion; Katsina N14,5 billion; Lagos N14.5 billion; Rivers N14.5
billion; Borno N13,654138,849.49; Imo 13 billion; Jigawa 13.2 billion;
and Niger N13.4 billion.
Others are: Bauchi N12.7 billion and Benue N12.7 billion, Anambra
N11.3 billion; Cross River N11.3 billion; Edo N11.3 billion; Kebbi N11
billion; Kogi N11.2 billion; Osun N11.7 billion; Sokoto N11.9 billion;
Abia N10.6 billion; Ogun N10.6 billion; Plateau N10.4 billion; Yobe N10
billion; and Zamfara N10 billion. Other states are: Adamawa N4.8
billion; Ebonyi N3.3 billion; Ekiti N8.8 billion; Enugu N9.9 billion;
Gombe N8.3 billion; Kwara N5.4 billion; Nasarawa N8.4 billion; Ondo N6.5
billion; Oyo N7.2 billion and Taraba N4.2 billion.
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