Femi Falana (SAN)
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)
Introduction
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:
- 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. - 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. - 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. - 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.
Conclusion
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.
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