by Femi Falana
(Being a paper delivered by Femi Falana SAN at the Public Hearing on Improving the Capacity of Citizens on the Use of the Freedom of Information Act, 2011 held by Socio-Economic Rights and Accountability Project (SERAP) in Lagos on Tuesday, February 12, 2019)
Under section 22 of the 1999 Constitution the mass media is required to uphold the fundamental objectives of the State and uphold the responsibility and accountability of the government to the people. While the duty imposed on the media has been frustrated by the denial of access to information on public affairs it is submitted that access to information is a fundamental right by virtue of section 38 of the Constitution which stipulates that “every citizen shall have the right to freedom of expression including the right to obtain information and impart ideas”.
Access to information is equally protected by article 9 (2) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act which provides that “Every individual shall have the right to receive information”. In SERAP & Ors v Attorney-General of the Federation (Suit No: FHC/ABJ/CS/640/2010) the applicants applied for information on the mismanagement of the $12.4 billion in the dedicated accounts in the central bank by the Ibrahim Babangida junta. Following the refusal of the Federal Government to release the report of the Okigbo Panel which had investigated the scandal a suit was filed at the Federal High Court by the plaintiffs seeking to compel disclosure of information of the fund pursuant to section 38 of the Constitution and article 9 of the African Charter. The trial judge dismissed the case for want of locus standi on the part of the applicants.
However, in Dododo v EFCC the Court of Appeal upheld the human right of the appellant to access information when it was said that he was entitled to a copy of the report of the investigation in respect of the petition alleging corruption by a public officer which he had submitted to the respondents. According to the Nwodo J.C.A. who delivered the leading judgment of the court, “The Appellant is entitled to the investigation report on his right as the complainant. See Article 9 of the African charter.”
We have cited the aforementioned provisions of the relevant laws and cases to emphasize the point that the struggle for access to information in Nigeria predated the enactment of the Freedom of Information Act. All the same, the human rights community, the Media Rights Agenda and other media bodies which fought the battle that culminated in the enactment of of the Freedom of Information Act, 2011 deserve commendation.
Basic provisions of the FOI Act
The essence of the law is to open up the government to the public, promote transparency and accountability in government. Thus, the law has recognized the right of every citizen to access information from any record under the control of the government or public institution. The law is also applicable to private institutions which utilize public funds, perform public functions or provide basic services. Private organizations like telecommunication companies and other public quoted companies fall into this category. Religious bodies which engage in business may also be asked to disclose information with respect to funds collected from the members of the public.
The law requires public officers to keep the records of the government. They shall be made available upon demand by interested members of the public including the media (section 1 & 3). An applicant is required to apply for access to information in writing and to provide sufficient detail in the application. An oral application is not allowed under the law. Under section 2(2) thereof an applicant is not obliged to give any reason or demonstrate any specific interest in the information.
Upon the receipt of a written request the information shall be provided within seven days. The request shall be attended to by the head of the organization. If a letter is wrongly addressed to any department it shall be forwarded to the appropriate office as the case may be. There are adequate provisions for the information needs of illiterate and physically challenged people to access information. It is also important to note that there is protection for whistle blowers. Refusal of information shall be communicated within 7 days. Public officers may ask for extension of time within which to make requested information available to an applicant (section 6).
An applicant may be requested to pay reasonable standard charge for search, duplication and transcription (section 8). But where the information is in the public interest payment is not required. Where information is withheld it shall be communicated to the applicant within 7 days. The letter shall contain information that the applicant has the right to challenge the refusal in court. An applicant who has been denied access to requested information is at liberty to apply to the Court for a review of the matter within 30 days after the denial. An application for mandamus to compel disclosure shall be heard by a court summarily to prevent delay.
To ensure the implementation of the law the government is required to publish in the Gazette a description of its responsibilities, the records under its control, administrative manuals etc. Public institutions are compelled to keep records and information and organize them in a way that they can be accessed. The Act requires government and public institutions to provide training for officials on the public’s right to access information of public records.
The law has created reporting obligations on compliance with the law for all institutions affected by it. These reports are to be submitted annually to the office of Attorney-General of the Federation who in turn is required to oversee the effective implementation of the Act and report on the execution of implementation of the Act to the National Assembly.
Penalties for violation of FOIA
If it is proved that information has been altered or destroyed by a public officer or any person he shall be liable to be tried and if convicted he shall be sentenced to 1 year imprisonment. However, sections 29 and 30 have provided immunity for public officers from civil or criminal prosecution for disclosing information without authorization. In violation of the Act some public officers have been victimised for disclosing information to the members of the public, the media and the anti-graft agencies.
Exceptions to the FOIA
The exception to the FOIA includes information that could compromise national security, the conduct of international affairs, records that could expose trade secrets, test questions, architectural engineering designs, research materials under preparation, legal practitioner – client relationship, health worker – patient relationship and journalists’ confidential source of information (Sections 11, 12, 14, 15, 16 & 17).
The disclosure of personal information is also exempted except where the person involved agrees to its disclosure or where the information is already publicly available, or where the disclosure is in the public interest. For instance, members of the public are empowered by the Electoral Act 2010 to seek information with respect to nomination forms submitted by candidates who are contesting elections in Nigeria.
The Official Secrets Act and other ant freedom of expression enactments and regulations cannot be invoked to prevent the disclosure of official information. This is the purport of section 2(b) of the FOIA which has guaranteed access to official information notwithstanding anything contained in any other law or regulation.
Implementation of the FOI Act
Since the FOI Act was enacted on May 28, 2011 it has been invoked by civil rights lawyers and the human rights community to obtain vital information from some public bodies. Where information was withheld court orders have been sought and obtained to compel disclosure. Ironically, the media which led the campaign for the successful enactment of the legislation has not taken advantage of the law to seek information with a view to discharging the duty of promoting public accountability pursuant to section 22 of the Constitution.
Our law firm has invoked the law to obtain information from the Universal Basic Education Commission (on the total amount paid to the UBE Fund since 2005 by the Federal Government and disbursement of the fund to states), Nigerian Communication Commission (on the disbursement of the fine of N1 billion imposed on GSM operators for disrupting services), National Drug Law Enforcement Agency (on the list of 197 persons who were convicted for drug trafficking but who were not found in prisons), Corporate Affairs Commission (on whether there was a move to ban the Nigeria Governors’ Forum).
In order to deny access to information some agencies have asked applicants for information to pay prohibitive fees. For instance, when our firm requested the National Oil Spill Detection and Response Agency to provide information on the Bonga Oil Field spillage we were asked (NOSDPRA) to pay N100,000.00. We made the payment and collected the report. But after collecting the report we petitioned the office of the Attorney-General of the Federation to protest the commercialization of access to official information by the NOSPRA. Upon the intervention of the then Attorney-General of the Federation, Mr. Mohammed Adoke SAN, the sum of N95,000 was refunded to us while the remaining N5,000 was retained by NOSDRA for reproducing the report in line with the FOI Act.
Aceess to information through litigation:
The human rights community has filed majority of the cases filed under the FOI Act. Some of the cases include the following:
1. In Olasupo Ojo v Economic and Financial Crimes Commission, the EFCC under the leadership of Mrs Farida Waziri claimed that the CDHR was critical of the activities of the EFCC because it had been paid by some unnamed corrupt persons. The CDHR invoked the provision of the FOI to demand for the identity of those who had paid it to attack the EFCC. As there was no response the then CDHR president, Mr. Olasupo Ojo, approached the federal high court to compel disclosure. The order was granted.
2. In Legal Assistance and Aid Project v National Assembly the applicant requested for information on the details of the jumbo salaries and allowances of national assembly members. When the information was not provided the applicant dragged the National Assembly to court. In a judgment delivered on the matter the federal high court ordered the defendants to accede to the request of the applicant. Dissatisfied with the verdict the National Assembly has taken the matter to the Court of Appeal.
3. The Socio-Economic Rights and Accountability Project (SERAP) has sued the Federal Government to account for the repatriated loot of the late military ruler, General Sani Abacha. In granting the order of mandamus, the trial judge, Idris J (as he then was) directed the federal government to provide detailed information on the loot. Following the judgment, the anti-graft agencies as well as the ministries of justice and information have regularly provided information on the loot recovered by the Buhari administration.
4. SERAP has also sued the National Assembly to account for N500 billion spent on running costs from 2006 to 2016. Furthermore, SERAP has sued the federal Ministries of Agriculture and Water Resources to explain why millions of Nigerians have to drink contaminated water despite the trillions of Naira the authorities claimed to have spent on provision of water in the country.
While the Act has been effectively invoked to hold the federal government accountable it has been difficult to promoted public accountability in the states. Apart from the Ekiti state government which has adopted the Act others have rejected all requests by concerned citizens to access information. In Alo v Ondo State House of Assembly the Court of Appeal held that the applicant, a journalist, was entitled to a copy of the audited accounts of the defendant between 2012 and 2016. According to the Court, “in a democratic dispensation such as Nigeria’s, the citizens have been proclaimed owners of sovereignty and mandates that place leaders in the saddle.” However, in Edocasa v Osakue, the Benin judicial division of the same court held that the Act is not applicable in states which have not adopted it. It is hoped that the Supreme Court will soon resolve the contradictions in the two decisions of the Court of Appeal.
From the foregoing, it can no longer be business as usual in the running of public affairs by public officers and institutions under the federal government. Thus, by virtue of the FOI Act there is no more secrecy in the affairs of the federal government as information can be requested for on any aspect of the management and operations of public institutions including the award of contracts, disbursement of funds, recruitment of staff etc. Any public officer who withholds information is liable to be prosecuted apart from being ordered to disclose the withheld information. The human rights community should however ensure that the masses are mobilised to take advantage of the provisions of the FOI Act to demand accountability from public officers and officials of private institutions that render public service.
From the foregoing, it has been demonstrated that the Constitution and the African Charter have recognised the right of citizens to information. The right has been strengthened by the FOI Act. So far, the FOI Act has enhanced the legally enforceable rights of Nigerian citizens to official records, documents and information held by the federal government, public institutions and private bodies performing public functions subject to certain exceptions.
Since the law is designed to improve transparency in the conduct of public affairs by making it easier than hitherto to access public records and information that are deemed to be in the public interest, sufficient pressure ought to be mounted on state governments to adopt the Act. With guaranteed access to information I am confident that Nigerians will continue to challenge the quality of governance and use of public resources.