AFRICAN HUMAN RIGHTS LAW JOURNAL Public declaration of assets in Nigeria: Conflict or synergy between law and morality? Ilias B Lawal* Lecturer and Sub-Dean (Postgraduate), Faculty of Law, University of Ibadan, Nigeria Summary The Nigerian Constitution seeks to prevent corruption and abuse of office through its provisions on the declaration of assets by public officers. Although they are not obliged to do so, many public officers have publicly declared their assets. This has in turn put pressure on others to do so. In forging a synergy between the law and practice of asset declaration in Nigeria, the paper examines the human rights implications of the recent trend and proffers suggestions for improvement. 1 Introduction Before he took his oath of office as the President of the Federal Repub- lic of Nigeria on 29 May 2007, President Umaru Musa Yar’Adua had declared his assets and liabilities as required by the 1999 Nigerian Constitution.1 After about a month in office, on 28 June 2007, the President made his asset declaration public in fulfilment of his elec- tioneering campaign. Records show that he also publicly declared his assets when he was elected as Governor of Katsina State in 1999. Presi- dent Yar’Adua declared assets of N945 446 116 million.2 President Yar’Adua, who said he was planning a Freedom of Information Bill that would make it mandatory for all public officers to declare their assets publicly, explained that the Code of Conduct Bureau had advised him * LLB (Hons) (Ibadan), LLM (Ife); [email protected] 1 See para 11 of the Fifth Schedule to the 1999 Nigerian Constitution. 2 The Punch 29 June 2007 4. 224 ahrlj-2009-1-text.indd 224 6/23/09 10:44:21 AM PUBLIC DECLARATION OF ASSESTS IN NIGERIA 225 against making his assets public as this would put pressure on other public officers to do so.3 Since the President’s public declaration of his assets, mixed reactions have been expressed by Nigerians. These range from the sublime to the ridiculous. His action has also attracted commendation and a consider- able dose of cynicism and skepticism.4 A few days after the public declaration, the Kogi state Governor, Ibrahim Idris, former Governor of Zamfara state and Senate minority whip, Sanni Ahmed, and Governor Gbenga Daniel of Ogun state declared their assets publicly.5 One major fallout of the public declaration of assets by President Yar’ Adua is the pressure being mounted on all his lieutenants and other public officers to do the same. The worst hit was the Vice-President, Dr Goodluck Jonathan. Nigerians naturally expected him to follow the footsteps of the President by declaring his assets publicly even though there is no legal obligation on him to do so. When they realised that the Vice-President was reluctant to declare his assets, formal calls were made to him. The calls were rebuffed by the Vice-President, who claimed that he had already declared his assets before the Code of Conduct Bureau, more than seven times as Deputy-Governor, twice as Governor and once before taking an oath of office as the Vice-President.6 In an editorial entitled ‘The Vice-President’s Assets’,7 the Guard- ian newspaper asked if the Vice-President’s reluctance was due to his attempt to conceal something from the public and urged him to act without further delay. It continued:8 By hiding under the letters of the law, the Vice-President lays himself open to a charge: Does he have something to hide? Morality is not law, but some- times perception may be more important than morality. He should see this as an opportunity to cleanse his image. And he needs not pollute the issues by turning this into a matter for partisan politics. The Vice-President caved in to pressure and made his assets declaration of N295 304 420 million public on the following day,9 probably after reading the editorial. Going by the public outrage against the Vice- President for his delay in making his asset declaration public, should penal sanctions attach to the failure to make an asset declaration public in Nigeria as opposed to a failure to declare assets? This brings to the fore the age-long conflict between law and morality. Law is a set of rules aimed at regulating human conduct. It is usually, but not always, backed by sanctions. Morality, on the other hand, is a distinct domain of normative thinking about action and feeling, the 3 As above. 4 For the different reactions, see This Day 3 July 2007 7; The Nation 10 July 2007 48. 5 The Guardian 10 July 2007. 6 The Guardian 1 August 2007 1. 7 The Guardian 7 August 2007 1. 8 As above. 9 The Vaunguard 9 August 2007 1. ahrlj-2009-1-text.indd 225 6/23/09 10:44:21 AM 226 (2009) 9 AFRICAN HUMAN RIGHTS LAW JOURNAL whole domain being the subject of ethics.10 Both law and morality are founded in norms essential to the well-being of society — thus has theft developed from the concept of private property. Moreover, morality and law occupy common ground, as numerous infringements of the law are also morally abhorrent.11 Questions concerning the proper limits of the law are of particular interest to thinkers in the Western political tradition of individualism. In this tradition, the law is regarded as an instrument of coercion and the problem is to define the scope of the law in such a way that it fulfils its necessary purpose at minimum cost to individual liberty. The debate therefore centres on the proper end of legal coercion. Two law-limiting strategies are commonly adopted: the practical and the moral.12 As the most important ends of human life (salvation of the soul, or its secular equivalent, moral integrity) are taken to require the uncoerced ‘inward’ assent of the individual, the effective scope of the law is sig- nificantly limited on practical grounds by the regulation of ‘outward’ behaviour. On the moral question concerning what behaviour ought to fall within the purview of the law, conservatives contend that the society has a right to enforce its moral values by criminalising whatever behaviour its members regard as ‘sinful’.13 There can be little doubt that moral considerations do influence rules of law, but this aspect has to be distinguished from the question regarding how far laws should give effect to moral attitudes.14 Lord Mansfield went as far as to assert ‘that the law of England prohibits everything which is contra bonos mores’,15 but other judges have been more cautious.16 Also worth consideration is the question: On what basis should a failure to declare assets publicly, as opposed to a failure to declare it as stipulated by the Code of Conduct, attract criminal sanction? Is it on the basis of Mill’s harm-to-others principle or Dias’s calculus?17 Failure to make one’s asset declaration public after submitting the asset declaration form to the Code of Conduct Bureau does not in itself constitute any harm to anyone. It is only harmful when people hide behind the fact that members of the public do not have access to the declaration to make false declarations in order to cover up assets illegally acquired in corruption or abuse of office. This means that, although there is no legal obligation to publicise a declaration of assets 10 1E Craig (ed) Routledge encyclopedia of philosophy (1998) 544. 11 B Jones ‘A’ level law (1981) 4. 12 Craig (n 10 above) 460. 13 As above. 14 RMW Dias Jurisprudence (1985) 215. 15 Jones v Randall (1774) 1 Cowp 17 39; R v Delaval (1963) 3 Burr 1438. 16 Eg Scrutton LJ in In Re Wigzell, ex parte Hart (1921) 2 KB 835 859. 17 For further explication on this, see HLA Hart The concept of law, cited in LB Curson Jurisprudence (1995) 234-235; Dias (n 14 above) 111. ahrlj-2009-1-text.indd 226 6/23/09 10:44:21 AM PUBLIC DECLARATION OF ASSESTS IN NIGERIA 227 in Nigeria, the refusal to do so is potentially harmful to the country. This view is strengthened by the fact that most public officers being tried for or convicted of corruption are found to have made a false declaration of their assets. This is engendered by the lacunae contained in the constitutional provisions on the declaration of assets in Nigeria, to which we now turn. 2 Constitutional provisions relating to asset declaration in Nigeria 2.1 Code of Conduct Provisions on the declaration of assets by all public officers in Nigeria are entrenched in the Code of Conduct for Public Officers, contained in Part I of the Fifth Schedule to the 1999 Nigerian Constitution. The Code was first introduced into the Nigerian Constitution in 1979. It is meant to prevent corruption and abuse of office and to ensure transparency in public officers. Public officers for the purposes of the Code include the President18 and the Vice-President19 of the Federation, the President and Deputy-President of the Senate, the Speaker and Deputy-Speaker of the House of Representatives and Speakers and Deputy-Speakers of Houses of Assembly of states and all members of legislative houses,20 Governors and Deputy-Governors of states,21 the Chief Justice of Nigeria, justices of the Supreme Court, the President and justices of the Court of Appeal, and other judicial officers and all staff of courts of law,22 the Attorney-General of the Federation and Attorney-General of each state.23 Ministers of government of the Federation and com- missioners of governments of the states,24 Chief of Defence staff, Chief of Army staff, Chief of Naval staff, Chief of Air staff and all mem- bers of the armed forces of the Federation,25 the Inspector-General of Police, the Deputy-Inspector-General of Police and all members of the Nigerian Police Force and other government security agencies established by law,26 the Secretary to the government of the Federa- tion, Head of Civil Service, Permanent Secretaries, Directors-General and all other persons in the civil service of the Federation or of the 18 Para 1, Part II, Fifth Schedule to the 1999 Nigerian Constitution.