Missing $12.4bn oil windfall ruling a setback in the fight against corruption, says SERAP

30 November 2012.

Socio-Economic Rights and Accountability Project (SERAP) has described as “disappointing” and “a setback in the fight against large scale official corruption” the ruling yesterday by an Abuja Federal High Court presided over by Justice Gabriel Kolawole which dismissed an action seeking to compel former military president, Gen. Ibrahim Badamasi Babangida to account for how his leadership expended the $12.4 billion oil windfall between 1988 and 1994.

In a statement dated 30 November 2012 and signed by SERAP Executive Director Adetokunbo Mumuni the organization stated that, “At a time when this country has enacted the Freedom of Information Act, the ruling on the suit seeking accountability for the missing $12.4 billion oil windfall is a major setback for victims of large scale corruption. It potentially could encourage impunity of perpetrators of corruption. The ruling sends a wrong message that it is alright to steal public funds and that there will be no accountability for suspected perpetrators.”

According to the group, “On the one hand, the court held that the plaintiffs lacked locus standi to bring the case. On the other hand, the court stated that the plaintiffs should not be seen as busy bodies but patriotic citizens. The court even praised ‘the courage and dedication of SERAP in instituting the matter calling the group a serious minded organisation desirous or ridding Nigeria of all forms of corruption.’ But these statements would seem to be contradictory.”

“We therefore reject the ruling in its entirety as it does not reflect the correct position of the law in Nigeria today, as aptly articulated by the Court of Appeal in Fawehinmi vs President, (2007) 14 NWLR (Pt.1054) 275, to the effect that ‘the issue of locus standi, in a country like ours, should be construed liberally, so that people and organizations should not be denied access to the courts.’ The Court of Appeal also made it clear that it is wrong for a pressure group or even a single public-spirited taxpayer to be prevented by outdated technical rules of locus standi from bringing matter to the attention of the Court to vindicate the rule of law and get any unlawful conduct stopped,” the group also stated.

The group also quoted the Court of Appeal as saying that, “The Constitution or any other Law can only be tested in Courts; it is access to the courts for such test that will give satisfaction to the people for whom the Constitution or the Law is made.”

“Similar position was taken by the ECOWAS Court in the celebrated right to education case where the court stated that ‘first, the doctrine of ‘Actio Popularis’ developed under Roman law to allow any citizen to challenge a breach of public right in Court was a way of ensuring that the restrictive approach to the issue of standing would not prevent public spirited individuals from challenging a breach of a public right in Court. Second,

SERAP citied authorities from around the globe which all concur in the view that in a human rights violation the plaintiff need not be personally affected or have any special interest worthy of protection. This is a healthy development in the promotion of human rights and this court must lend its weight to it, in order to satisfy the aspirations of citizens of the sub-region in their quest for a pervasive human rights regime,” the group also said.

“We are studying the ruling very carefully and will certainly be appealing against it before the Court of Appeal. The battle is not over.”

It would be recalled that the ruling was delivered after several adjournments. The day the ruling was to be delivered, the Attorney General of the Federation and Minister of Justice Muhammed Adoke brought an application asking the court to dismiss the suit. In reaching the decision, the court said the applicants lacked the legal right to institute the action as they failed to adduce any cogent reason that confers them with the right to sustain the action.

Falana and Falana Chambers filed the suit on behalf of SERAP and five other right groups.

At the hearing in September, the Federal Government insisted that the enactment by the former Chief Justice of Nigeria Idris Legbo Kutigi of the Fundamental Rights (Enforcement Procedure) Rules 2009 “exceeded his Constitutional powers by liberalising the rules on locus standi, permitting public impact litigation, and allowing the inclusion of the African Charter on Human and Peoples’ Rights in the Rules.”

The government also said that it could not find the Okigbo report, and had no duty to render account on the spending of the accrued revenue. The Plaintiffs disagreed, arguing that “such duty exists on the basis of Article 9 of the African Charter, which has become part of our national laws. Also, the Freedom of Information Act has been enacted which also imposes a legal duty on public institutions and agencies to render account, and allow access to public documents.”

It was also argued for the government that “only the AGF as a defender of public interest has the right to seek information on the spending of the $12.4 billion oil windfall,” and that the Plaintiffs have no such right. The Plaintiffs countered by saying that it was “the failure of the AGF to carry out his duty in this respect,” that prompted their legal action against the government in the first place.

The case initially set down for judgment on Thursday 24 July 2011 has suffered several adjournments. The case was previously adjourned to 16 March 2012 for re-adoption of written addresses but was not heard as the court did not sit.

When the matter first came up for judgment, the trial judge, Justice Gabriel Kolawole, said the judgment was not yet ready to be delivered. According to the judge then, “the judgment is not yet ready. I have to give priority to criminal cases which are very important. I have a backlog of judgments which are older than this case. I regret the delay.” The judge subsequently adjourned the case to October 21 2011 to deliver the judgment.

However, when the case came up on 21 October 2011 it was again adjourned indefinitely because the court did not sit. It was at this point that the suit became affected by the provisions of Section 194 (1) of the 1999 Constitution (as amended), which provides that, “Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”

The suit no FHC/ABJ/CS/640/10 was brought under the Fundamental Rights (Enforcement Procedure) Rules 2009.

The non-governmental organisations had dragged the Attorney- General of the Federation (AGF) and the Central Bank of Nigeria (CBN) before the court over the much publicised 12.4 billion dollars oil windfall, which the country recorded between 1988 and 1994, while former military dictator, Ibrahim Babagida rode rough shod on the nation as the maximum ruler.

The plaintiffs asked the court to make an order compelling the apex bank and the AGF to publish detailed accounts relating to the spending of the colossal sum of money between 1988 and 1994. They also sought for an order of the court compelling the respondents to diligently and effectively bring to justice any one suspected of corruption and mismanagement of the 12.4 billion dollars oil windfall.

They also want an order directing the respondents to provide adequate reparation, which may take the form of restitution, compensation, satisfaction or guarantees of non-repetition to millions of Nigerians that have been denied their human rights as a result of the respondents’ failure and/or negligence to ensure transparency and accountability in the spending of $12.4 billion oil windfall between 1988 and 1994.

According to the plaintiffs, “The need for information regarding the spending of $12.4 billion oil windfall is important to promote transparency and accountability in the management of public resources and to fulfill Nigeria’s international obligations to promote the development of the country. Access to information of this nature is especially important in this country, which is struggling to establish the rule of law and democracy in the face of underdevelopment, poverty, illiteracy and diseases. The right of access to information is also crucial to the realisation of all other human rights, including the peoples’ right to their natural wealth and resources.”

The plaintiffs also argued that: “The diversion and/or mismanagement of the $12.4 billion oil windfall is a violation of Nigerians’ right to natural resources and wealth and to economic development, as recognised and guaranteed by 21 and 22 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act). Under the African Charter, the Nigerian government has a legal responsibility to utilise the natural resources of the country so as to benefit the whole people. Just as the people of every sovereign state have a permanent right to choose their form of government, so the people are entitled to insist that the natural resources of the nation be exploited in the interest of the people.”

It would be recalled that a coalition of six civil society groups led by Socio-Economic Rights and Accountability Project (SERAP) sued the AGF and CBN in September 2010, seeking information on how $12.4 billion oil windfall of between 1988 and 1994 was spent.

The other plaintiffs in the suit are: Women Advocates and Documentation Centre (WARDC); Human and Environmental Development Agenda (HEDA), Access to Justice (AJ); Partnership for Justice, and Committee for Defence of Human Rights (CDHR).


Adetokunbo Mumuni
SERAP Executive Director