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SERAP v. Nigeria, Judgment, ECW/CCJ/APP/12/07; ECW/CCJ/JUD/07/10 (ECOWAS, Nov. 30, 2010)
“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 AttorneyGeneral to decide on what matter or who to prosecute, and that power is entirely
bis to exercise. And the AttorneyGeneral 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 policymaking. 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
http://www.worldcourts.com/ecowasccj/eng/decisions/2010.11.30_SERAP_v_Nigeria.htm
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