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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