Socio-Economic Rights and Accountability Project
(SERAP) has sent an open letter to President Muhammadu Buhari
urging him to use his leadership position “to promptly drop the
plan by the Federal Government to borrow about N895bn of unclaimed
dividends and funds in dormant accounts using the patently
unconstitutional and illegal Finance Act, 2020, and to ensure full
respect for Nigerians’ right to property.”
The Finance Act, signed into law by Buhari last December, would
allow the government to borrow unclaimed dividends and dormant
account balances owned by Nigerians in any bank in the country.
But SERAP in a letter dated 9 January 2021 and signed by its
deputy director Kolawole Oluwadare said: “The right to property is
a sacred and fundamental right. Borrowing unclaimed dividends and
funds in dormant accounts amount to an illegal expropriation, and
would hurt poor and vulnerable Nigerians who continue to suffer
under reduced public services, and ultimately lead to unsustainable
levels of public debt.”
SERAP said: “The right to property extends to all forms of
property, including unclaimed dividends and funds in dormant
accounts. Borrowing these dividends and funds without due process
of law, and the explicit consent of the owners is arbitrary, and as
such, legally and morally unjustifiable.”
According to SERAP: “The borrowing is neither proportionate nor
necessary, especially given the unwillingness or inability of the
government to stop systemic corruption in ministries, departments,
and agencies [MDAs], cut waste, and stop all leakages in public
expenditures. The borrowing is also clearly not in pursuit of
public or social interest.”
The letter, read in part: “The security of property, next to
personal security against the exertions of government, is of the
essence of liberty. It is next in degree to the protection of
personal liberty and freedom from undue interference or
molestation. Our constitutional jurisprudence rests largely upon
its sanctity.”
“Rather than pushing to borrow unclaimed dividends and funds in
dormant accounts, your government ought to move swiftly to cut the
cost of governance, ensure review of jumbo salaries and allowances
of all high-ranking political office holders, and address the
systemic corruption in MDAs, as well as improve transparency and
accountability in public spending.”
“The borrowing also seems to be discriminatory, as it excludes
government’s owned official bank accounts and may exclude the bank
accounts of high-ranking government officials and politicians,
thereby violating the constitutional and international prohibition
of discrimination against vulnerable groups, to allow everyone to
fully enjoy their right to property and associated rights on equal
terms.”
“SERAP is concerned that the government has also repeatedly
failed and/or refused to ensure transparency and accountability in
the spending of recovered stolen assets, and the loans so far
obtained, which according to the Debt Management Office, currently
stands at $31.98 billion.”
“SERAP notes growing allegations of corruption and mismanagement
in the spending of these loans and recovered stolen assets.”
“We would be grateful if your government would drop the decision
to borrow unclaimed dividends and funds in dormant accounts, and to
indicate the measures being taken to send back the Finance Act to
the National Assembly to repeal the legislation and remove its
unconstitutional and unlawful provisions, including Sections 60 and
77, within 14 days of the receipt and/or publication of this
letter.”
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“If we have not heard from you by then as to the steps being
taken in this direction, the Registered Trustees of SERAP shall
take all appropriate legal actions to compel your government to
implement these recommendations in the public interest, and to
promote transparency and accountability in public spending.”
“The government cannot lawfully enforce the provisions on Crisis
Intervention Fund and Unclaimed Funds Trust Fund under the guise of
a trust arrangement, as Section 44(2)[h] of the Nigerian
Constitution 1999 [as amended] is inapplicable, and cannot justify
the establishment of these funds.”
“SERAP notes that while targeting the accounts of ordinary
Nigerians, the Finance Act exempts official bank accounts owned by
the federal government, state government or local governments or
any of their ministries, departments or agencies.”
“Our requests are brought in the public interest, and in keeping
with the requirements of the Nigerian Constitution, the country’s
international human rights obligations including under the African
Charter on Human and Peoples’ Rights to which Nigeria is a state
party, and which has been domesticated as part of the country’s
domestic legislation.”
“According to our information, your government has reportedly
completed plans to borrow an estimated N895bn of unclaimed
dividends and funds in dormant accounts using the Finance Act 2020
you recently signed into law.”
“Under the law, the government will be able to access and take
without consent unclaimed dividends and funds in dormant accounts
in any bank, on the basis of the vague and undefined ‘Crisis
Intervention Fund,’ and patently unlawful ‘Unclaimed Funds Trust
Fund’.”
“The government is justifying the borrowing on the ground that
it would improve access of the Federal Government to much-needed
funds, and remove the burdens of foreign exchange and punitive loan
conditions imposed by multilateral lenders.”
“According to the Finance Act, the operation of the trust fund
is to be supervised by the Debt Management Office (DMO) and
governed by a governing council chaired by the finance minister and
a co-chairperson from the private sector appointed by you.
“The Nigerian Constitution in Section 44(1) provides that, ‘no
moveable property or any interest in an immovable property shall be
taken possession of compulsorily and no right over or interest in
any such property shall be acquired compulsorily in any part of
Nigeria except in the manner and for the purposes prescribed by a
law.’”
“Similarly, Article 14 of the African Charter on Human and
Peoples’ Rights, and Article 17 of the Universal Declaration of
Human Rights guarantee the right to property and prohibit the
arbitrary deprivation of the right. Thus, everyone is entitled to
own property alone as well as in association with others.”
“Respect for the right to property is important to improve the
enjoyment of other basic human rights and to lift Nigerians out of
poverty. The Nigerian Constitution and international human rights
law limit the ability of any government to interfere with private
property without any legal justifications.”
The letter is copied to Mr. Abubakar Malami, SAN, Attorney
General of the Federation and Minister of Justice, and Mrs. Zainab
Ahmed, Minister of Finance, Budget, and National Planning.