Issues in assets, liabilities declaration in anti-graft war
Assets and Liabilities Declaration Systems (ALDS) are established as part of the anti-corruption and ethics in government movement. DAVID AGBA writes.
Transparency framework
Assets and Liabilities Declaration Systems (ALDS) are part of the accountability and transparency framework of modern governance. About 137 countries in the world have ALDS. ALDS contribute to the prevention, detection, investigation and prosecution of corruption and they have been established for two main objectives.
The first is to combat conflict of interest situations while the second deals with the challenge of illicit enrichment.
Generally, ALDS are established to facilitate a climate of integrity in public service.
Some systems focus on one of the objectives while others target the two objectives. ALDS is also linked to the combating of money laundering and terrorist financing as provided in the Financial Action Task Force Recommendations.
International obligations
Also, the ALDS helps countries to comply with their international obligations under treaties to fight corruption, promote good governance and enhance democracy. This includes Nigerian obligations under United Nations Convention against Corruption (UNCAC) and the African Union Convention against Corruption. It reinforces other national laws and standards which mandate the reduction of corruption and promotion of ethics in government. For instance, by section 15 (5) of the Constitution of the Federal Republic of Nigeria 1999 under the Fundamental Objectives and Directive Principles of State Policy, it is provided that: The state shall abolish all corrupt practices and abuse of power.
Many issues dealt with in the constitutional Code of Conduct for Public Officers, which is part of ALDS are reinforced by the Financial Regulations made under the Finance (Control and Management) Act as well as the Public Service Rules which contain the rules of engagement in the Public Service of the Federation.
In his book titled ‘Assets and Liabilities Declaration Systems’, Lead Director of the Centre for Social Justice (CSJ), Eze Onyekpere said, “A typical ALDS is founded in law or policy and is made up of five different parts namely, compiling the list of persons and officials bound to declare assets; what they should declare; the submission process; verification of submitted information; recourse and enforcement mechanisms.
“At the core is the financial disclosure agency which in Nigeria is the Code of Conduct Bureau (CCB or Bureau) – the government agency charged with managing the ALDS.”
According to him, for the ALDS to contribute to the above stated principal objectives, the mandate of the disclosure agency must be activated through a process that covers all the stages of the disclosure system. There should as a minimum be a guarantee that assets and liabilities will be declared, submitted, verified and follow-up mechanisms activated.
“The ALDS should be able to capture existing assets and changes in wealth, sources of income, potential conflict of interest scenarios, among others.
“The category of persons who are bound to make a declaration and what they should declare is usually stated in law and policy frameworks. But the actual list of persons needs to be drawn by the disclosure agency or any other agency mandated by law. The category of persons bound to declare their asset may have a lot in common with the definition of politically exposed persons (PEPs). PEPs are individuals who are, or have been, entrusted with prominent public functions, their family members and close associates[1]. However, the two categories are not exactly the same. While a good number of declarants will be PEPs, non-PEPs are also under obligation to declare assets and liabilities.”
Submission process
The submission process can either be stated in the law or left to the discretion of the financial disclosure agency.
Onyekpere stated that the submitted disclosures will need to be stored before and after verification. The process of verification of the submitted declarations is usually left to the disclosure agency to manage. Verification may involve comparing the growth in assets over time, receiving complaints from the public, search of public and private databases and requesting for more information from sister public agencies. Prosecutions and enforcement usually involve the disclosure agency and others.
In reviewing assets and liabilities declaration practices and policies under constitutional and statutory provisions, he said it is pertinent to identify the gaps and mischief in existing law and practice while advancing remedies for law reform and to ensure greater compliance with the law. The design or redesign of ALDS must therefore be founded on evidence and realism so that the system fulfils its goals and objectives. The ALDS should not raise so much hope and deliver so little in terms of results. Questions will arise which are related to the overall compliance rate by persons who have a legal obligation to declare their assets; what is the rate of verification or what percentage of declared assets is verified by the disclosure agency? What are the challenges faced by declarants? Are the resources available to the disclosure agency enough to properly manage the regime for the number of declarants involved? etc. How efficient and effective is the declaration regime and how transparent and accountable is it to the citizen?
International Law dimension
Article 8 of the United Nations Convention against Corruption (UNCAC) provides as follows:
(1) In order to fight corruption, each State Party shall promote, inter alia, integrity, honesty and responsibility among its public officials, in accordance with the fundamental principles of its legal system.
(2) In particular, each State Party shall endeavor to apply, within its own institutional and legal systems, codes or standards of conduct for the correct, honourable and proper performance of public functions.
(5) Each State Party shall endeavour, where appropriate and in accordance with the fundamental principles of its domestic law, to establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.
Also, article 52 (5) of UNCAC states that:
Each State Party shall consider establishing in accordance with its domestic law, effective financial disclosure systems for appropriate public officials and shall provide for appropriate sanction for non-compliance…
The General Assembly resolution 58/4 of 31 October 2003 on the United Nations Convention against Corruption had recalled previous agreements on the need to curb corruption because of the serious danger it poses to humanity.
Interconnectedness
Onyekpere continued that essentially, the indivisibility, interconnectedness and inseparability of all human rights and fundamental freedoms dictate that human rights will be difficult to realise in a corrupt system where public officers engage in illicit enrichment and conflict of interest. This will eventually lead to denials of basic rights such as education, health, housing and the right to fair trial. This is because the resources needed to guarantee these rights will be frittered away. There is a nexus between corruption and violation of human rights and fundamental freedoms.
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