Last week I reported that the Socio-Economic Rights and Accountability Project or SERAP , a Nigerian NGO, was being sued by the country’s former first lady for urging the authorities to investigate her for receiving “small gifts” ($15 million in total) while her husband served in government, first as Governor of the oil-rich state of Bayelsa, then as Vice-President and later President. While the saga of the first lady and her “small gifts” recently took another unusual (bizarre?) legal twist, this week the focus is on SERAP and one its most creative approaches to combating corruption in Nigeria: the precedent setting suit it brought against the Government of Nigeria in the Court of Justice of the Economic Community of West African States for corruption in education.
The ECOWAS Court is one of several regional international tribunals established to hear disputes between neighboring countries, in its case 15 states in West Africa. The Court’s statute also grants it jurisdiction to entertain actions against a member state for human rights violations. In 2007 SERAP took advantage of this provision to bring the Government of Nigeria before the bar of justice for its failure to curb massive corruption in the agency funding schools in disadvantaged areas of the country. While SERAP’s argument was straightforward — Nigeria’s inability to curb corruption denied citizens’ their constitutionally guaranteed right to education – the SERAP suit appears to be a first: a human rights action based on a state’s failure to control corruption.
The Nigerian government lodged several objections in opposition: SERAP had to take its case first to Nigerian courts; the ECOWAS Court had no jurisdiction to hear the matter; SERAP had no standing to sue; the right to education was not justiciable. But in its landmark decision in favor of SERAP the Court swept all of them aside, ruling that corruption in education could constitute a violation of the right to education if government did not make a serious effort to prosecute the corrupt officials and recover the stolen funds. SERAP v. Nigeria stands as an important precedent for civil society groups in countries where governments are unwilling to address deeply-ingrained, high level corruption that denies citizens constitutionally guaranteed rights. It also demonstrates how an energetic civil society group committed to fighting corruption can find a creative legal argument to unlock the courthouse door.
Details on the case are in this paper by Adetokunbo Mumuni, SERAP’s Executive Director and its lead counsel in the action. The paper is the eighth in a series commissioned by the Open Society Justice Initiative on civil society and anticorruption litigation. It follows earlier ones on i) standing by GAB editor-in-chief Matthew Stephenson, ii) civil society litigation in India by Vidhi Centre for Legal Policy Director Arghya Sengupta, iii) private suits for defrauding government by Houston Law School Professor David Kwok, iv) private prosecution in the U.K. by Tamlyn Edmonds and David Jugnarain, v) damages for bribery under American law by this writer, vi) public trust theory by Professor Elmarie van der Schyff, a professor of law at South Africa’s North-West University, and vii) private suits for corruption in public procurement by Abiola Makinwa, a lecturer in commercial law at the Hague University of Applied Sciences. All papers are available here on the JI Web site.
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