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JUDGMENT OF THE COURT
1. PARTIES AND LAWYERS
The paintiff is a human rights non-governmental organization registered
under the laws of the Federal Republic of Nigeria. The first defendant is a
member of the Economic Community of West African States. The second
defendant is body set up by the first defendant to ensure the success of
basic education in the country. The applicant was represented by A. A.
Mumuni. and Sola Egbeyinka. The first defendant was. represented by Yemi
Pitan and Tolu Odupe. whilst the second defendant was represented by John
Gaul.
2. SUBJECT-MATTER OF THE PROCEEDINGS
The initiating application complains of violation of the- human right to
quality education, the right to human dignity, the right of peoples to their
wealth and natural resources, and the right of people to economic and social
development, guaranteed by Article 1.2, 17.21 and 22 of the African Charter
on Human and Peoples' Rights (ACHPR).
FACTS OF THE CASE
3. The genesis of this mater, according to the Applicant is a report of
investigations conducted into the activities of the second defendant. Indeed
the investigation centred on the mismanagement of funds allocated for basic
education in ten states of the Federation of Nigeria. This report was
submitted to the Presidency on April 13, 2006. The exact amount though has
not been disclosed.
4. Besides, in October 2007, the independent Corrupt Practices Comission (ICPC)
reported having more than 488 million naira of funds looted from state
offices and headquarters of the second defendant and was still battling to
recover another 3.1 billion naira looted by officials of the second
defendant.
5. Die Applicant contends that this is not an isolated case but illustration
of high level corruption and theft of funds meant for primary education in
Nigeria. The result is that Nigeria is unable to attain the level of
education that she deserves in that over five million Nigerian children have
no access to primary education, among others. The Applicant catalogued a
number of factors that have negatively affected the educational system of
the country, including failure to train more teachers, non-availability of
books and other teaching materials etc.
6. The charge against the first defendant is that she has "contributed to
these problems by failing to seriously address all allegations of corruption
at the highest levels of government and the levels of impunity that
facilitate corruption in Nigeria."
7. The result is that this has “contributed to the denial of the right of
the peoples to freely dispose of their natural wealth and resources, which
is the backbone to the enjoyment of other economic and social rights such as
the right to education...... SERAP contends that the destruction of
Nigeria's natural resources through large scale corruption is the sole cause
of the problems denying the majority of the citizens access to quality
education.”
8. PLEAS IN LAW
The Applicant quoted the provisions of Article 4(g) of the 1993 Revised
Treaty of ECOWAS, as well as Articles, 2, 17, 21 and 22 of the ACHPR and
submitted that the first defendant has violated the right to éducation, the
right of the people not to be dispossessed of their wealth and natural
resources and the right of the people in economic and social development.
9. RELIEFS AND ORDERS SOUGHT
i A declaration that even Nigerian child is entitled to free and compulsory
éducation by virtue of Article 17 of the African Child's Rights Act, Section
15 of the Child's Rights Act 2003 and Section 2 of the Compulsory Free and
Universal Basic Education Act 2004.
ii A declaration that the diversion of the sum of 3.5 billion naira from the
UBE fund by certain public officers in 10 states of the Federation of
Nigeria is illegal and unconstitutional as it violates Articles 21 and 22 of
the ACHPR.
iii An order directing the defendants to make adequate provisions for the
compulsory and free education of every child forthwith
iv An order directing the defendants to arrest and prosecute the public
officers who diverted the sum of 3.5 billion naira from the UBE fund
forthwith.
v An order compelling the government of Nigeria to fully recognize primary
school teachers’ trade union freedoms, and to solicit the views of teachers
throughout the process of educational planning and policy-making.
vi An order compelling the government of Nigeria to assess progress in the
realization of the right education with particular emphasis on the Universal
Basic Education: appraise the obstacles, including corruption, impeding
access of Nigerian children to school; review the interpretation and
application of human rights obligations throughout the education process.
THE DEFENCE CASE
10. For their part, the defendants totally rejected the claims by the
applicant. The defendants filed separate statements wherein they identified
some issues as being material to a determination of this matter. The first
defendant formulated three issues relating to the following: 1. The court's
jurisdiction over this matter. 2. Failure on the part of the applicant to
exhaust local remedies before coming to this court. 3. Failure by the
applicant to establish their claims.
11. The second defendant set out a number of issues, namely: 1. Whether the
second defendant is the competent body to answer the allegations made by the
applicant. 2. Whether the proper parties are before the court. 3. Whether
the applicant has established their case. 4. Whether the applicant has
satisfied the condition precedent to bringing an action before this court
that is exhaustion of local remedies.
12. PRELIMINARY ISSUES
On 27th October 2009, the court issued a ruling in an application for
preliminary objection raised by the defence. These issues about the court's
jurisdiction in this matter as well as the exhaustion of local remedies were
decided in that ruling. It is thus inappropriate for Counsel to raise the
same issues again. The principle of law is clear that when a court has
decided on some issues in the case, the decision creates issue estoppel as
between the parties and/or their privies in the present and any subsequent
proceedings in which same issue’s is/are raised. Besides, the decision of
this court is final and can only be altered through a revision if the
correct procedure is followed. In view of the foregoing, the court cannot
re-open these two issues about its jurisdiction and exhaustion of local
remedies.
ANALYSIS OF THE MAIN ISSUES
13. The key issue is whether, having regard to the record before the court,
the applicant has established a case against the defendants or any of them.
The other issue about whether the second defendant is answerable for the
education units of the states who they regard as the proper parties to this
case will be addressed first. This is because if the second defendant is a
wrong party sued, there will be no point discussing the main issue with
reference to them.
14. Among other duties they are mandated by law to perform, the second
defendant stated that they ‘receive block grant from the Federal Government
and allocate to the States and Local Governments and other relevant agencies
implementing the Universal Basic Education …… provided that the Commission
shall not disburse such grant until it is satisfied that the earlier
disbursements have been applied in accordance with the provisions of the
Act’.
15. It is clear from even a cursory reading of this provision in the Act
which the second defendant themselves relied upon that they have a
responsibility to ensure that the funds they disburse to the .States, inter
alia, are utilised for the purposes for which they were disbursed. Thus the
second defendant cannot be heard to say that if funds given to the States
are not properly accounted for they are not responsible, albeit vicariously.
It is clear from the use of the mandatory expression ‘shall not disburse’
that the Act has placed the onus on them to be satisfied that the funds are
property utilised, hence the power given to them to refuse further
disbursements. The language of the statute is so clear and unambiguous
requiring no interpretation. Thus the second defendant is a proper party in
this action, despite the fact that the ten States mentioned in the Report
might also have been joined to this action.
16. Turning next to the main issue, the applicant relies largely on the ICPC
Report which they annexed to their papers filed in this ease. The ICPC
report uncovered corrupt practices in the management of funds allocated for
education. The applicant further contends that the "allegations of high
level corruption have contributed to series of serious and massive
violations of the right to education, including lack of access to quality
primary education in Nigeria".
17. The defendants are alleged to have contributed to the denial of
education to a lot of Nigerians by failure to seriously address all
allegations of corruption at the highest levels of government and the levels
of impunity that facilitate corruption in Nigeria. This situation has
contributed to the denial of the right of the peoples to freely dispose of
their natural wealth and resource, which is the backbone to the enjoyment of
the right to education and other economic and social rights.
18. To begin with, the ICPC report is the product of investigations into the
affairs of the basic education sector. And in law such investigative report
is not conclusive of the facts stated therein, nonetheless they provide
prima facie evidence of the facts investigated. If the report finds that
there is evidence of corruption. It behoves the appropriate authority to act
further on it, and secure a judicial verdict. It is only then that a person
investigated can be said to be guilty of the allegations or findings of
corruption contained in the report. And the fact that the report is not
conclusive of the facts stated therein explains the use of such words and
expressions as “allegedly”, “reportedly”, “according to reports”, in the
initiating application.
19. And coming to the crux of the matter. granting that the ICPC report has
made conclusive findings of corruption that per se will not amount to a
denial of the right of education. Admittedly, embezzling stealing or even
mismanagement of funds meant for the education sector util have a negative
impact on education since it reduces the amount of money made available to
provide education to the people. Yet it does not amount to a denial of the
right to education, without more. The reason is not far to seek. The Federal
Government of Nigeria has established institutions, including the 2nd
defendant to take care of the basic education needs of the people of
Nigeria. It has allocated funds to these institutions to carry out their
mandate We believe these .are all geared towards fulfilling the right to
education. Some officers charged with the duty of implementing the education
mandate, arc said to have misused, misapplied, embezzled or even stolen part
of the funds. The Federal Government and the 2nd defendant are said to have
failed to act against such persons and for that reason, they are .said to
have denied the right of the peoples of Nigeria to education. There must be
a clear linkage between the acts of corruption and a denial of the right to
education. In a vast country like Nigeria, with her massive resources, one
can hardly say that an isolated act of corruption contained in a report will
have such devastating consequence as a denial of the right to education,
even though as earlier pointed out it has a negative impact on education.
20. The applicant appreciated this last point and so went on to argue that
“this is not an isolated case but an illustration of high level corruption
and theft of funds meant for primary education in Nigeria.” This Court
cannot accept such sweeping conclusion. It is a serious indictment on
authorities of the Federal Republic of Nigeria which calls for strict proof,
being a criminal matter. In the absence of such proof, the Court will reject
any suggestion of high level corruption in the educational sector which has
resulted in a denial of the right to education.
21. The Court takes note that in the course of implementing policies,
especially financial policies. If funds are stolen or embezzled or
misapplied, it behoves the matter to be dealt with internally, that is at
the domestic level. This Court will only hold a State accountable if it
denies the right to education to its people Funds stolen by officers charged
with the responsibility of providing basic education to the people should be
treated as crime, pure and simple or the culprits may be dealt with in
accordance with the applicable civil laws of the country to recover the
funds. Unless this is done, every case of theft or embezzlement of public
funds will be treated as a denial of human rights of the people in respect
of the project for which the funds were allocated. That is not the object of
human rights violation in this Court where every breach or violation must be
specifically alleged and proved by evidence.
22. Indeed the ICPC report itself did not recommend prosecution in the first
place. Paragraph (viii) of its recommendations is pertinent and germane to
the ongoing discussion, and it reads: “All illegal and unauthorized payments
including transfers, diversion, misapplied funds or fictitious claims
discovered during the course of investigation should be refunded to the
government, failure to accede to this request will lead to criminal
prosecution of those involved or the Agency”.
23. The Court notes that there is no time frame set in the report for the
funds to be recovered. The applicant has jumped the first step in the
implementation of the report and is calling for prosecution which is the
last resort.
24. Be that as it may, even if the report had recommended prosecution, this
Court will not have the power to order the defendants to arrest and
prosecute anybody to recover state money. It is the duty of the
Attorney-General to decide on what matter or who to prosecute, and that
power is entirely bis to exercise. And the Attorney-General is not a
community official, within the meaning of Article 10(c) of the Supplementary
Protocol on the court, no. A/SP/1/01/05 that could be ordered for having
failed to perform official act.
25. Another order sought by the Applicant was that the government of Nigeria
should recognize school teachers’ trade union freedoms. and to solicit the
views of teachers throughout the process of educational planning and
policy-making. There is no evidence in support of this. Besides, this is not
a human rights issue, whether the government will include another
organization in the planning and execution of its programmes. Be that as it
may the Act which established the second defendant, winch they annexed to
their document, shows that the teachers are not ignored as the applicant
wants to imply from the order sought. The Nigeria Union of Teachers, as well
as the National Parents Teachers Association of Nigeria, and the National
Teachers institute are all represented on the board of the second defendant.
DECISION
26. In the light of foregoing analysis of the facts, the Court is able to
decide as follows:
Relief 1. The defendants do not contest the fact that every Nigerian child
is entitled to free and compulsory basic education. What they earlier on
said was that the right to education was not justiciable in Nigeria, but the
court in its earlier ruling of 27nd October 2009 in this case, decided it
was justiciable under the ACHPR.
27. Relief 2. As stated already, the report provides only prima facie and
not conclusive evidence of the facts stated therein, and there is no
judicial pronouncement on these findings. Also the alleged suspects are not
parties before us in this action, so this court is unable to make any
declaration of illegality or unconstitutionality in this matter.
28. Relief 3. The applicant is saying that following the diversion of funds,
there is insufficient money available to the basic education sector. We have
earlier referred to the fact that embezzlement or theft of part of the funds
allocated to the basic education sector will have a negative impact; this is
normal since shortage of funds will disable the sector from performing as
envisaged by those who approved the budget. Thus, whilst steps are being
taken to recover the funds or prosecute the suspects, as the case may be, it
is in order that the first defendant should take the necessary steps to
provide the money to cover the shortfall to ensure a smooth implementation
of the education programme, lest a section of the people should be denied a
right to education.
29. Relief 4. The court cannot grant this order for the arrest and
prosecution of the alleged suspects for reasons already explained.
30. Reliefs 5 and 6. For lack of evidence these orders arc refused.
31. In conclusion, subject to reliefs 1 and 3 which the court grants in
terms as stated above, the court rejects all the other reliefs and orders
sought.
32. COSTS
Since the matter succeeds in part the parties shall bear their own costs.
This decision has been read m open court in Abuja this 30th day of November
2010 in the presence of: |
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