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23 Oct 2018

Court Grants SERAP's Wish To Make Fashola Explain How N900bn Was Spent On Power Sector

The Federal High Court in Ikoyi, Lagos, has granted leave to the Socio-Economic Rights and Accountability Project (SERAP) to seek its reliefs to compel the Minister of Power, Works and Housing, Babatunde Fashola (SAN), to account for power-sector spending.

Hon. Justice C.J. Aneke granted SERAP the leave as prayed to seek judicial review and order of mandamus to compel Fashola to act over the “failure to account for the spending on the privatisation of the electricity sector and the exact amount of post-privatisation spending on generation companies (GENCOS), distribution companies (DISCOS) and Transmission Company of Nigeria (TCN) to date, and to explain if such spending came from budgetary allocations or other sources.”

Justice Aneke granted the order for leave following the hearing of an argument in court on an ex parte motion by SERAP's counsel, Ms Bamisope Adeyanju. While adjourning the matter to Tuesday November 20, 2018, for mention. the court also ruled that Fashola be put on notice.

In June, SERAP had sued Fashola in suit number FHC/L/CS/972/18 at the Federal High Court, seeking “an order for leave to apply for judicial review and an order of mandamus directing and/or compelling Mr Fashola to provide specific detailson the privatization of the electricity sector, the names of all the companies and individuals involved; and to publish widely including on a dedicated website any such information.”

The suit followed SERAP’s Freedom of Information request dated May 7, 2018, to Fashola, giving him 14 days to provide “information on the status of implementation of the 25-year national energy development plan, and whether the Code of Ethics of the privatization process, which bars staff of the Bureau of Public Enterprises (BPE) and members of the National Council on Privatization (NCP) from buying shares in companies being privatized, were deliberately flouted.”

The suit read in part: “Most of the companies that won the bids had no prior experience in the power sector and little or no capacity at all to manage the sector. The privatization of the Power Holding Company of Nigeria (PHCN) has yielded the country total darkness. The gains of privatization have been lost through alleged corruption, manipulation of rules and disregard to extant laws and lack of transparency in the exercise.

“The Goodluck Jonathan government reportedly spent over N400 billion on the power sector while the present government spent over N500 billion on the sector despite privatisation. It is unclear if this spending is drawn from budgetary allocations and if these are loans to generation companies (GENCOS), Distribution companies (DISCOS) and Transmission Company of Nigeria.

“Publishing the information requested and making it widely available to the public would serve the public interest and provide insights relevant to the public debate on the ongoing efforts to prevent and combat a culture of mismanagement of public funds, corruption and impunity of perpetrators.

“To further highlight the seriousness of the situation, several years after the country’s power sector was privatized, millions of Nigerian households particularly the socially and economically vulnerable sectors of the population continue to complain about outrageous bills for electricity not consumed, and poor power supply from distribution firms. Millions of Nigerians continue to be exploited through the use of patently illegal estimated billing by DISCOs. One wonders the essence of the privatization if there has been no corresponding improvement in power for Nigerians.”

“Enforcing the right to truth would allow Nigerians to gain access to information essential to the fight against corruption and provide a form of reparation to victims of grand corruption in the power sector. The UN Committee on Economic, Social and Cultural Rights in its General Comment 3 has implied that privatization process should not be detrimental to the effective realization of all human rights, including access to regular electricity supply.

"SERAP has the right to request the information under contention on the basis of several provisions of the Freedom of Information (FOI) Act, 2011. By Section (1) of the FoI Act, SERAP is entitled as of right to request for or gain access to information, including information on post-privatization spending by the Federal Government and accounts of spending on the private entities such asGENCOS and DISCOS.”

The suit is seeking the following reliefs:

"A DECLARATION that the failure of the Respondent to furnish the Applicant with information on specific details on the spending on the privatization of the electricity sector, the exact amount of post-privatization spending to date and the names of all the companies and individuals involved, as well as explain if such spending came from budgetary allocations or other sources, is unlawful as it contradicts and in conflict with the obligations of the Respondent under the Freedom of Information Act 2011.

"A DECLARATION that the failure of the Respondent to furnish the Applicant with information on the details of spending on and status of implementation of the twenty-five (25) year national energy development plan is unlawful as it contradicts and in conflict with the obligations of the Respondent under the Freedom of Information Act 2011.

"A DECLARATION that the failure of the Respondent to clarify to the Applicant the degree of compliance with the Code of Ethics of the privatization process which bars staff of the Bureau of Public Enterprises (BPE) and members of the National Council on Privatization (NCP) from buying shares in companies being privatized is unlawful as it contradicts and in conflict with the obligations of the Respondent under the Freedom of Information Act 2011.

"AN ORDER OF MANDAMUS directing and/or compelling the Respondent to furnish the Applicant with information on specific details of spending on the privatization of the electricity sector, the exact amount of post-privatization spending to date and the names of all the companies and individuals involved; as well as to explain if such spending came from budgetary allocations or other sources, and to publish widely including on a dedicated website any such information.

"AN ORDER OF MANDAMUS directing and/or compelling the Respondent to furnish the Applicant with information on the details of spending and status of implementation of the twenty-five (25) year national energy development plan, and to publish widely including on a dedicated website any such information.

"AN ORDER OF MANDAMUS directing and/or compelling the Respondent to clarify the degree of compliance with the Code of Ethics of the privatization process, which bars staff of the Bureau of Public Enterprises (BPE) and members of the National Council on Privatization (NCP) from buying shares in companies being privatized.

"The privatization of power assets has already caused major crises, ranging from illiquidity, load rejection, metering problems, corrupt practices, lack of gas to power the stations, disinterestedness of investors, lack of injection of fresh capital after acquisition of financing, tariff interest, consumer apathy, foreign exchange hostilities, and a host of other sundry issues associated with it.”

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