By Jerry Uwah Lagos-
The federal government has explained that it’s not constitutionally binding on it to disclose records of how the 35 states spent the N388.304 billion London Paris Club loan refunds paid to them.
This, it said, was because the relationship between the Office of the Accountant General of the Federation and the states “is professional and confidential.”
The reasons were advanced before the Federal High Court, Lagos Division, following a suit by the Socio-Economic Rights and Accountability Project (SERAP).
SERAP, in the suit number FCH/CS/523/17, seeks “an order of mandamus directing and/or compelling the government to publish details of spending of N388.304 billion London Paris Club Loan refunds allegedly diverted and mismanaged by 35 states.”
The response followed the ruling in June by Justice Muslim Hassan that SERAP could proceed with the legal challenge to unravel how the states spent the loan refunds. While granting the prayer, Justice Hassan stressed that it was important for the authorities “to come and tell us how they spent our money.”
Our position -FG
But responding through the Accountant General of the Federation, Ahmed Idris, 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, a 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.” In the response filed on Friday before the court, the government further 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.”
“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 on how they have spent the Paris Club refunds.” “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 N388.304 billion 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,” the federal government further submitted.
But in a counter response, 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. Th erefore, 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.” In its view, “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 a record about the spending of the refunds by the 35 states”.
It contended 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.
“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 counteraffidavit 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,” SERAP argued.
FG changes gear
The motion on notice had earlier been 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.
However, in a fresh move, the government fi led a counteraffi davit and brief of arguments, claiming among others that the matter was confi dential. What each state got Th e federal government had released N388.304 billion of the N522.74 billion to 35 states as refunds of over-deductions on London-Paris Club loans.
The breakdowns as received by the various states are listed below: 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 N13 billion; Jigawa N13.2 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