➥ CASE SUMMARY OF:
The Registered Trustees of The Socio-economic Rights and Accountability Project (SERAP) v. The Federal Republic of Nigeria and Universal Basic Education Commission (UBEC) (2010) – ECOWAS
by “PipAr” B.C. Chima
ECOWAS – ECW/CCJ/JUD/07/10
➥ JUDGEMENT DELIVERED ON:
November 30th 2010
➥ AREA(S) OF LAW
Corruption impeding right to education
➥ NOTABLE DICTA
⦿ WHEN A COURT DECIDES AN ISSUE, IT CREATES AN ISSUE ESTOPPEL
Para. 12: “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.”
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice H. N Donli
Hon. Justice Anthony A. Benin
Hon. Justice Soumana D. Sidibe
⦿ FOR THE APPLICANT
A.A. Mumuni Esq.
⦿ FOR THE RESPONDENT
Yemi Pitan Esq.
➥ CASE HISTORY
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.
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.”
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.”
➥ ISSUE(S) & RESOLUTION
[PRELIMINARY OBJECTION: DISMISSED]
I. Whether the second defendant is answerable for the education units of the states?
RULING: IN APPLICANT’S FAVOUR.
Para. 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.”
[ON MERIT: DISMISSED]
I. Whether having regard to the record before the court, the applicant has established a case of high level of corruption causing denial of right to education?
RULING: IN RESPONDENT’S FAVOUR.
Paras. 19 – 20: “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 will 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, are 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. 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.”
Para. 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 ,his 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.”
Paras. 26 – 29: “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.
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.
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.
Relief 4. The court cannot grant this order for the arrest and prosecution of the alleged suspects for reasons already explained.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)