The Federal Government has told the Federal High Court in Lagos that the record of spending of N388.304billion London Paris Club Loan refunds by 35 states released to the states by Federal Government to pay overdue pensioners’ entitlements and workers’ salaries “is protected by professional privilege, and therefore confidential.”
The Federal Government through the Accountant General of the Federation Alh. 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.”
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 is now arguing 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 N388.304billion London Paris Club Loan refunds by the 35 states is exempted from publication, assuming the Federal Government has the information sought by SERAP.”
The Federal Government is also arguing that, “The Accountant General does not have custody or possession of the information or record relating to the spending of N388.304billion 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”.
SERAP also argued that, “Assuming without conceding that the Accountant General does not have record of spending of N388.304billion 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.”
SERAP said that, “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.”
It would be recalled that the motion on notice was set for Wednesday 14 September 2017 for the hearing of argument on why the government should not be directed and compelled to public 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.
It would also be recalled that the Federal Government released N388.304billion 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 N14.5bn; Bayelsa N14.5bn; Delta N14.5bn; Kaduna N14.3bn; Katsina N14,5bn; Lagos N14.5bn; Rivers N14.5bn; Borno N13,654138,849.49; Imo 13bn; Jigawa 13.2bn; and Niger N13.4bn.
Others are: Bauchi N12.7bn and Benue N12.7bn, Anambra N11.3bn; Cross River N11.3bn8; Edo N11.3bn; Kebbi N11bn; Kogi N11.2bn; Osun N11.7bn; Sokoto N11.9bn; Abia N10.6bn; Ogun N10.6bn; Plateau N10.4bn; Yobe N10bn; and Zamfara N10bn. Other states are: Adamawa N4.8bn; Ebonyi N3.3bn; Ekiti N8.8bn; Enugu N9.9bn; Gombe N8.3bn; Kwara N5.4bn; Nasarawa N8.4bn; Ondo N6.5bn; Oyo N7.2bn and Taraba N4.2bn.
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