By Mike Ozekhome, SAN
The Legal Regime of Asset Declaration
Let us, today, explore the legal organogram and regime of Asset Declaration. Whilst declaration of assets by public officials is mandatory (see Section 140; 142 (2) of the Constitution of the Federal Republic of Nigeria, and Paragraph11, Part 1 of the Fifth Schedule of the Constitution of the Federal Republic of Nigeria), it is contended by many that public declaration is voluntary, and is not a legal requirement for public officials. Let us now explore the legal regime of asset declaration, to arrive at an answer.
Section 140 of the 1999 Constitution (as altered) provides as follows:
“(1) A person elected to the office of President shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed in this Constitution, and he has taken and subscribed the Oath of Allegiance and the oath of office prescribed in the Seventh Schedule to this Constitution.
(2) The oaths aforesaid shall be administered by the Chief Justice of Nigeria, or the person for the time being appointed to exercise the functions of that office.”
Section 142 (2) of the 1999 Constitution (as altered) states:
“(2) The provisions of this part of this Chapter relating to qualification for election, tenure of office, disqualification, declaration of assets and liabilities and oaths of President shall apply in relation to the office of Vice-President as if references to President were references to Vice-President.”
Par II, Part 1 to the Fifth Schedule of the 1999 Constitution laconically provides that:
“Subject to the provisions of this Constitution, every public officer shall within three months after the coming into force of this Code of Conduct or immediately after taking office and thereafter –
(a) at the end of every four years; and
(b) At the end of his term of office,
Submit to the Code of Conduct Bureau a written declaration of all his properties, assets, and liabilities and those of his unmarried children under the age of eighteen years.”
Paragraph 3, Part 2, Schedule 5 of the Constitution thus, encompasses these public officers as the President, Vice-President, all members and staff of the National and State legislative houses, Governors and Deputy Governors, all judicial officers and staff of courts of law, all State and Federal political appointees, Ambassadors, High Commissioners and other officers of Nigeria missions abroad, and DGs and Chairmen of all parastatals and agencies of Federal and State Governments, military, police, immigration, customs, prisons, political office holders and all Federal, State and Local Government civil servants.
These public officers are mandated by the provisions of Paragraph II of Part 1 to the Fifth Schedule of the Constitution to declare their asset, and those of their unmarried children under 18 years to the Code of Conduct Bureau (CCB), before and after their tenures.
The Code of Conduct Bureau (CCB), established in 1979, has the core mandate to check corrupt practices in the Nigerian public service, by ensuring public officers declare their assets to the Bureau.
According to guidelines specified by the CCB, all public officers are not only required to declare their own assets upon assumption of office, but also those of their wives and children.
“When filing the form, a person is required to provide detailed information, including, but not limited to, the number, types, address, value or properties so declared. and the date of acquisition as well as income derivable from the properties where appropriate,” it states.
CCB: Public Officers must consent to release of forms
While the Presidency maintained in the Buhari/Obasanjo’s cases only be handled by the CCB, the CCB has, in turn, passed the buck, when it said it needed the consent of public officers to provide such information.
Section 1(1) of the Freedom of Information Act empowers citizens to require for information concerning public officials. It provides as follows:
“Notwithstanding anything contained in any other Act, law or regulation, the right of any person to access or request information, whether or not contained in any written form which is in the custody or possession of any public official, agency or institution howsoever described, is established”.
It was thus, surprising to behold the CCB come out to trenchantly defend the President and his vice, when an NGO, SERAP, had demanded for their declaration of Assets. The CCB had reputed thus:
“Section 12(1)(a)(4)(a)(b) exempts production of information relating to investigation for the purpose of law enforcement and such investigation carried out pursuant to Code of Conduct Bureau and Tribunal Act for the purposes of law enforcement.
“referring breaches of Code of Conduct for public officers to Code of Conduct Tribunal for prosecution is a matter of discretion of the bureau and not a matter of FOI…
“Reasons being that asset declarations contain information of the declaring officer. Nothing on the face of your request shows that the individuals to which the request relates have either consented to the release, or the information being sought for is one that is publicly available as stipulated by Section 14(2) of the FOI Act.”
“Consequently, I am further directed to convey to you that the request in SERAP’s application for information on details of asset declarations by Presidents and State Governors since the return to democracy in 1999, is hereby denied on the grounds that it falls short of the requirement of the law”. CCB explained.
Asset Declarations as a Global Tool for Transparency
The UN Convention Against Corruption provides as follows, in Article 8.5 (October 2003);
“Each State Party shall endeavour, where appropriate and in accordance with the fundamental principles of its domestic law, to establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.”
Regulations concerning the disclosure of assets and interests, can help prevent conflicts of interest among public office holders. Disclosure of information on private interests increases the transparency of decision-making processes, and thereby lays the foundations for the accountability of office holders for their actions. The disclosure of assets helps to provide a baseline, and thus, means for comparison to identify assets that may have been corruptly acquired, and that a public official may legitimately be asked to account for.
The Transparency International notes that:
“Asset and interest declarations, which require public officials to disclose information about their personal wealth and interests, are widely recognised as a vital tool to fight corruption and promote integrity in public service. They allow oversight institutions and the public to track the finances of those entrusted with the power to govern, and to scrutinise whether reported variations in wealth are justified. They also permit the public to monitor the outside interests of officials – such as secondary employment or business ownership – which helps avoid active conflicts of interest.
“Most countries use asset and interest declarations in some form, but the design and quality of systems varies greatly. This is partly because, there are no internationally agreed standards for implementation. In addition, most systems are fully or partially paper-based, and the transition to electronic systems for filing and publishing asset declarations is “the area of greatest change now taking place in the world of financial disclosure”, according to the Stolen Asset Recovery Initiative (StAR) launched by the World Bank and the United Nations Office on Drugs and Crime (UNODC)”.
Transparency International had recommended that governments should apply to high-ranking public officials regulations that mandate the comprehensive public disclosure of assets and interests; introduce a digital system for the capture, cross reference and publication of asset and interest declarations; and empower an independent oversight body and relevant stakeholders to strategically verify and monitor declarations and freely investigate suspicious cases.
Why Are Asset and Interest Declarations Relevant for Fighting Corruption?
As well researched and written by Transparency International,
“Asset and interest declarations have two purposes.
“Firstly, they guard against the accumulation of illicit wealth, by allowing oversight of the financial activities of politicians and senior public officials. The disclosure of relevant financial information at regular intervals – before, during and after a public appointment – helps to reveal unusual or inexplicable increases in personal wealth. This data can be used by agencies, courts, the media and civil society to investigate impropriety – while the requirement of disclosure, also acts as a deterrent to others.
“The second function of asset and interest declarations, is to monitor and prevent conflicts of interest. Decision-making by officials, which should serve the public interest, can be undermined by factors such as secondary employment, the ownership of shareholdings or the receipt of gifts and hospitality. Monitoring and disclosing the interests of public officials, helps to identify potential conflicts and mitigate them. Sometimes, the declaration of an interest is enough – for example, in a parliamentary debate – while at other times it is necessary to recuse an official from further business – such as when a procurement officer has interests in a company bidding for public contracts.”
Asset declarations have since been recognised by the international community, as a tool to fight corruption. For example, Article 8 of the UN Convention against Corruption (UNCAC) requires parties to establish systems for public officials to declare outside interest interests to an agency. Additionally, Article 52 discusses systems for financial disclosure and sanctions for non-compliance, and provisions for sharing information to aid the investigation and recovery of illicit assets. In 2016, 90 percent of 176 countries surveyed by StAR, had asset declaration procedures in place. (To be continued).
THOUGHTS FOR THE WEEK
“Corruption is the enemy of development, and of good governance. It must be got rid of. Both the government and the people at large, must come together to achieve this national objective”. (Pratibha Patil).
“Public servants should be focused on serving the public – not any special interest group, and good governance should be an expectation – not an exception”. (Abigail Spanberger).
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