FREEDOM OF INFORMATION AND PUBLIC ACCOUNTABILITY IN NIGERIA'S FOURTH REPUBLIC

ABSTRACT

The FOI Act creates, in principle, a right of access to information held by public authorities or by persons providing services for citizens; allowing citizens see a wide range of public information on any area. In reality, there is still some difficulty faced in accessing public records. In worst case scenarios, government officials simply ignore requests for information, mostly due to their lack of skills in records management – keeping, recovering, handling and conveying relevant documents. Although the FOI Act does not extensively provide for the duties and obligations and penalties of public officials in their respective capacities, the Honourable Attorney General of the Federation (HAGF) and the Minister for Justice have been saddled with the responsibility of creating guidelines for reporting and performance appraisal. These offices are also expected to submit an annual report to the National Assembly. However, there was a need for an appraisal of the Act and Guidelines to determine, if at all, the objectives of openness in government were being achieved. It was also impertinent to determine the efficiency of judicial review in promoting the objectives of the Act in public administration. This study used the Nigerian Freedom of Information Act 2011 and the Revised Guidelines on the implementation of the FOI Act 2013 as primary sources. It also used Case law, the Indian Right to Know Act 2005, the United Kingdom’s Freedom of Information Act 2000, conference papers, texts and journals as secondary sources of information for this research purpose. It’s been found that the majority know little about the rudiments of the FOI Act. Some authors reviewed, in this study, are ignorant of the existence of the supervisory role of the National Assembly under the FOI regime. Even with some judicial interpretation, the ‘public interest test’ in determining whether or not to disclose information is still largely subjective. There are still dissentions as to whether or not the FOI Act is applicable to States that have not domesticated the Act. Most of the cases have not reached the Court of Appeal so the issue of domestication has not been settled. Likewise, there is a difficulty in following cases on FOI as there are no popular law reports to be found. Notwithstanding, this study goes to the very heart of the FOI Act 2011. Its purpose is to analyse the prevailing circumstances and defects of the efficient functioning of the Act. It addresses the weak structure fundamental to its implementation. The stand point of this work is that a good structure is important to the proper running of the FOI system.


CHAPTER ONE:

GENERAL INTRODUCTION

1.1 Background to the Study

Freedom of Information[1] is an element of the right to freedom of expression[2] and is vital to the proper functioning of a democracy. The Freedom of Information Act developed in most countries as a result of the struggle for free expression. The Freedom of Information Act is one that makes provision for the disclosure of information held by public authorities or by persons providing services for them[3] [the citizens]. Freedom of Information implies that public bodies publish and disseminate, widely, documents of significant public interest, for example, operational information about how the public body functions and the content of any decision or policy affecting the public.[4] The philosophy underlying the Freedom of Information as captured by article IV (1) of the Declaration of Principles on Freedom of Expression[5] in Africa states,

“Public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information subject only to clearly defined rules established by law”.

In 1946, the United Nations General Assembly recognized that Freedom of Information “is a fundamental human right and the cornerstone for all freedoms”[6] to which the United Nations is consecrated. The right to information was given international legal status when it was enshrined in Article 19 of the Universal Declaration on Human Rights[7] and extended to the International Covenant on Civil and Political Rights. Since that time more than 80 countries have passed national legislations entrenching the right in domestic law.

Soon after, the African State members of the defunct Organization of African Unity entrenched the principle of Right to know in the African Charter on Human and People’s Rights[8]. It provided in Article 9 that

1. Every individual shall have the right to receive information.

2. Every individual shall have the right to express and disseminate his opinions within the law.

Similarly, the United Nations Convention against Corruption[9], Article 10 on public reporting provides:

 “Taking into account the need to combat corruption, each State Party shall, in accordance with the fundamental principles of its domestic law, take such measures as may be necessary to enhance transparency in its public administration, including with regard to its organization, functioning and decision-making processes [bold emphasis mine], where appropriate. Such measures may include, inter alia:

(a) Adopting procedures or regulations allowing members of the general public to obtain, where appropriate, information on the organization, functioning and decision-making processes of its public administration and, with due regard for the protection of privacy and personal data, on decisions and legal acts that concern members of the public;

(b) Simplifying administrative procedures, where appropriate, in order to facilitate public access to the competent decision-making authorities; and

(c) Publishing information which may include periodic reports on the risks of corruption in its public administration.”

In Archbishop A.O. Okogie v. The Attorney- General of Lagos State[10], the court pointed out the right as provided under S.36 (1) & (2) of the 1979 Constitution of Nigeria[11], which states,

“Every person shall be entitled to freedom of expression, including freedom to hold opinion and to receive and impart ideas and information without interference and without prejudice to the generality of subsection (1), every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions.”

In Nigeria, the search for Freedom of Information law dates back to 1993 during the regime of General Sani Abacha, which was noted for high level suppression of the press and journalists. It was observed that it was the Media Rights Agenda (MRA), Civil Liberties Organization (CLO), and the Nigerian Union of Journalists (NUJ) Lagos State Chapter that introduced the idea of Freedom of Information law by drafting a manuscript of the Freedom of Information Bill (FIB). The objective of their manuscript was to come up with guiding principles for the right of access to documents and information in the custody of the government or its officials so as to guarantee freedom of expression.[12] The original manuscript of the FIB went through several reviews. When democratic governance presented itself in 1999, the bill was presented to the National Assembly on December 9th, 1999 for the first time, and was passed by the House of Representatives in 2004 and by the Senate in 2006. Although, President Olusegun Obasanjo could not sign it into a law before leaving office in 2007, he formed the National Economic Development Strategy (NEEDS). The policy of NEEDS prioritised the Right to Information Act as one of the two flagship legislative interventions to underpin Nigeria’s economic transformation, the other being the Fiscal Responsibility Act.[13] Chapter 10 of NEEDS working document provided,[14]

“To improve transparency and accountability in government fiscal operations and check unproductive public expenditures by all tiers of government, fiscal responsibility and right to information bills will be enacted in 2004. The Fiscal Responsibility Act will require publication of annual audited accounts by all government agencies and public enterprises within six months of the end of their financial year…The Right to Information Act will foster openness and feedback by streamlining and rationalizing the system for information collection, collation, storage and dissemination on a timely basis.”

When the FOI bill was re-presented to the National Assembly in 2008, Ndiribe explained that, the FOIC had embarked on a sensitization campaign among members of the public and this led to one of the greatest debates Nigerians have ever been engaged in. To a very large extent, this sensitization paid off and swayed public opinion in favour of the bill which was labelled the media bill.[15]

This was not without hostility towards the bill from some quarters, which arguably, was responsible for the decision of the House of Representatives to throw it out and stop it from being re-presented on the floor of the House. The Senate, on its part, did not stop its re-presentation, but considered it and diluted some of its essential provisions. The two arms of the National Assembly harmonized their positions on the bill and passed the harmonized version of the bill on May 26, 2011. It was signed into law by President Goodluck Jonathan on May 28, 2011.

Although the Act, as many other legislations Nigeria has, seems good, the cardinal challenge is the implementation process because governments have been known to make good policies that don’t benefit the citizens, in view of the fact that the implementation process is usually dismal.

Public servants are made to swear to oath of secrecy when employed and the general consequence of this is an entrenched culture of secrecy and arbitrariness in government institutions. Virtually all government information in Nigerian is classified as top secret and this veil of secrecy makes it difficult to obtain information from any state agency. Anyone who wants useful information from a government department would be denied the information on grounds that it is classified Information. A Plethora of laws prevent civil servants from divulging official facts and figures, notably the Official Secrets Act 1962, which makes it an offence not only for civil servants to give out government information but also for anyone to receive or reproduce such information. Further restrictions are contained in Evidence Act, The Public Complaints Commission Act, The Statistic Act and The Criminal Code. Although it is understood that the Freedom of Information Act supersedes The Official Secrets Act, they do not need to exist side by side.

Anyawu, Akanwa and Ossai stated that “the idea behind these laws is to protect vital government information but the level of secrecy is so ridiculous that some government files contain ordinary information like Newspaper cuttings which are already in public domain. So impenetrable is the veil of secrecy that government departments withhold information from each [other] under the guise of official secret legislation. The result of this is that journalists are denied access to information that is critical for accurate reporting and unravelling [of] the web of corruption in government”.[16]

“If democracy cannot function without informed citizens, neither can it function without Freedom of Information or records management”. As more and more countries implement Freedom of Information laws in their quest to prove their ‘transparency’, ‘accountability’ and a ‘culture of openness’, the area of records management is where their attempts will stand or fall, and where it will become clear if FOI is a genuine attempt to improve democracy or to merely pay lip service to citizens’ demands.[17]



[1] Freedom of Information is used interchangeably with the phrase ‘Right to Know’ or ‘Right to Information’.

[2] Section 39, Constitution of the Federal Republic of Nigeria (C.F.R.N.), 1999

[3] Robert A., 2000, Freedom of Information Act: Parliamentary of the United Kingdom. Retrieved 1st August, 2014 from odinakadotnet.wordpress.com at 07:48am.

[4] Freedom of Information Coalition, March 2008, Memorandum on the Freedom of Information Bill. Submitted to The House of Representatives Joint Committee, headed by Senator Tawar Wada. Retrieved 25th October 2014 from http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/nigeria/Memo%20submitted%20to%20FOI%20Committee.pdf at 05:16am.

[5] Adopted by The African Commission on Human and Peoples’ Rights, meeting at its 32nd Ordinary Session,

In Banjul, The Gambia, from 17th to 23rd October 2002.

[6] UN General Assembly, (1946) Resolution 59(1), 65th Plenary Meeting, December 14

[7] Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

[8] in Nairobi on June 27, 1981 although it entered into force on October 21, 1986

[9] Signed in December 2003; effective in December 2005. It is the first global legally binding international anti-corruption instrument. One of its aims is to provide effective legal mechanisms. It was ratified by the Federal Government of Nigeria in December, 2004.

[10] [1981] 1 NCLR p. 223

[11] Now Section 39, Constitution of the Federal Republic of Nigeria, 1999 (as amended).

[12] Ogbuokiri, K., The limit of information Act in Freedom of Information Act 2011 and the fight against corruption and corporate fraud in governance.(2011) as cited in Abone G.O. and Kur J.T., 2014, Perceptual Influence of Freedom of Information Act on Journalism Practice in Nigeria, Arabian Journal of Business and Management Review (OMAN Chapter) Vol. 3. No.7

[13] R2kNigeria.org/index.php?option=com_content&view=article&id=204&itemid=305 accessed on 22nd October, 2014 at 01:19pm.

[14] 2004 Nigerian National Planning Commission in Abuja, Nigeria.

[15]Ndiribe, O., 2011, FOI Bill heralds a new era in Nigeria. Vanguard,  Issue 61383, June 8: p.25.

[16] Anyanwu E.U., Akanwa P.C. and Ossai-Onah O.V., 2013, Freedom of Information Bill, Its Relevance and Challenges in National Development: The Nigerian Experience, Library Philosophy and Practice (E-Journal), Paper 1030. Retrieved 23rd October 2014 from Http://DigitalcommonSectionUnl.Edu/Libphilprac/1030 at 11:23am.

[17] Glover M., Holsen S., MacDonald C., Rahman M. and Simpson D., 2006, Freedom of Information: History, Experience and Records and Information Management Implications in the USA, Canada and the United Kingdom. Retrieved 24th October, 2014 from www.armaedfoundation.org at 08:41pm.


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