The current asset declaration form By Eze Onyekpere

A couple of days ago, Nigerians were treated to some incredible news, the type we used to hear from very distant jurisdictions some years ago. It was about the non conviction-based recovery of stolen assets and public property under the official fight against corruption. Nigerians were regaled with the recovery of jewelry including watches, bangles, chains, etc., worth the sum of $40m by the estimation of the Economic and Financial Crimes Commission. The jewelry was stated to have been recovered from the former Minister of Petroleum Resources, Diezani Alison-Madueke. This recovery raises a lot of issues that need to be addressed for the enhancement of the struggle for transparency and accountability in Nigeria.

By any mode or estimation, jewelry worth $40m is a lot of money. Although curiously, the EFCC did not translate the jewelry’s worth into naira, at N360 to 1USD, this is N14.4bn; an incredible amount of money to be invested in jewelry at a time most Nigerians are finding it difficult to have three square meals. One only hopes that this jewelry was valued by professionals and by the time we are done with the final forfeiture, at least, the treasury would have been richer by N14.4bn and this would be deployed for public purposes.

But the most interesting of the issues is the relationship of this forfeiture and the assets and liabilities regime established by the constitution under the Code of Conduct regime. In the Fifth Schedule, Part 1, S.11 (1) of the 1999 Constitution, it is stated: “Subject to the provisions of this Constitution, every public officer shall within three months after the coming into force of this Code of Conduct or immediately after taking office and thereafter-(a) at the end of every four years; and (b) at the end of his term in office, submit to the Code of Conduct Bureau a written declaration of all his properties, assets and liabilities, and those of his unmarried children under the age of eighteen years”.

In furtherance of the mandate conferred on it by the constitution to manage the assets and liabilities regime, the Code of Conduct Bureau designed the assets declaration form for public officers. It may interest Nigerians to know that there is nothing in the assets declaration form for public officers obliging them to declare their jewelry. The form was silent on this and many other forms of property. So, strictly speaking, in law, any public officer with jewelry of that magnitude is under no legal obligation to declare it to the authorities at the Code of Conduct Bureau. It is a well-known fact that jewelry, especially gold and other precious metals, are used as an improved store of value in Nigeria and they hardly depreciate as much as money in a bank which is subject to inflationary trends and currency devaluation. Thus, omitting them in asset declaration form is a huge omission that provides an opportunity for the system to be subverted. However, it may be ridiculous for every public officer, especially women, to be asked to declare every small ornament in her possession. The CCB may decide to set a financial worth threshold, over which public officers would be under obligation to declare such jewelry in their asset declaration forms.

Beyond the foregoing, the content of the extant declaration form is not comprehensive. It excludes some categories of assets and contains nothing on liabilities. It is silent on stores of value like art and antique. It is also silent on crypto currencies, though it is argued that the Central Bank of Nigeria does not recognise crypto currencies as a legal tender. Intellectual property rights are also missing in the form but they are sources of earning income. Again, the form makes no provision for declaration of assets held under a beneficial ownership arrangement, despite the constitutional provision that :“A public officer who does any act prohibited by this Code through a nominee, trustee, or other agent shall be deemed ipso facto to have committed a breach of this Code”. In beneficial ownership, the legal ownership and holding the title to an asset are irrelevant, but the defining factors are control and use. Also, insurance arrangements and other pension schemes are left out of the form.

The other side of the coin is liabilities. Declaring assets without liabilities leaves the declaration hanging. The real worth of a public officer is his assets placed side by side his liabilities.  Incidentally, debts, obligations, loans, mortgages, guarantees, etc. are missing from the form and ought to be provided. Debts owed by the declarant (debit) and debts due to the declarant (credit) are missing from the form. The fact that liabilities are not requested in the form needs to be remedied. The form should also be properly headed as assets and liabilities declaration form instead of the extant asses declaration title.

For buildings and vacant land which are provided in the form, there is the need for more details which relate to the registration particulars in a land registry (if applicable). This will facilitate verification down the line. For lands and buildings, it is not clear whether a declarant is required to declare properties he owns jointly with others. The form seems not to have a provision for that. Under “Farm/Orchard/Ranch”, it is not clear whether the value requested is of the plants and animals alone excluding the value of the land on which the farm is situated. For cash in the bank, the information required should include the Bank Verification Number. This is imperative for tracking cash in banks by declarants. Also, there should be provision for any other assets or liabilities not covered by or under the heads contained in the assets and liabilities declaration form.

Remarkably, the form is silent on conflict of interest situations despite the clear provisions of sections 1 and 2 of the Code of Conduct for Public Officers, Fifth Schedule, Part 11 of the Constitution. There should have been questions around public officers being involved in partnerships, shareholdings, board memberships including boards of non-profits, investments, government contracts and previous employment relationships. Issues around the revolving door concept should also be introduced into the declaration form.

In sum, the current asset declaration form should be reviewed to take cognisance of current realities and developments in property holding and means of storing value.