Despite a promise of commitment to Open Government, FG conducts business in secret as MDAs shun FOI requests
In Nigeria, governance is becoming increasingly opaque despite Buhari's commitment to Open Government Partnership initiative
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DESPITE joining the Open Government Partnership (OGP) on June 23, 2016, with a commitment to make government more transparent, accountable and responsive to citizens, evidence has shown that, contrary to the spirit of the OGP initiative, the Federal Government is making it more difficult for Nigerians to access information concerning its activities.
The OGP is a multilateral initiative that was launched in 2011 to provide a platform for domestic reformers – in the form of civil society organisations, the private sector and individuals – to partner with the public sector to make governments more responsive, accountable and transparent to the citizens.
While signing on to the OGP initiative, President Muhammadu Buhari had declared the Federal Government’s commitment to increase transparency in governance, stamp out corruption and improve service delivery.
The Federal Government also made commitments to: establish a public central register of company beneficial ownership information; ensure transparency of the ownership and control of all companies involved in property purchase and public contracting; full implementation of the principles of Open Contracting Data Standard, focusing on major projects like building of health centres and the improvement of health services; enhance company disclosure on the payments to governments for the sale of oil, gas and minerals, complementing ongoing work through EITI (Extractive Industries Transparency Initiative); and strengthening asset recovery legislation.
However, investigations by The ICIR shows that, rather than governance becoming more transparent and accountable, in line with the commitments made by President Buhari when the country joined the OGP, government business in Nigeria is becoming increasingly opaque, with the Federal Government and its agencies seemingly wilfully witholding relevant public information from the citizens.
A major indicator of the non-transparent nature of the Federal Government is the abysmally low level of compliance with the Freedom of Information Act by the government and its agencies.
The Freedom of Information law is a major pillar of the OGP initiative. According to the Open Government Partnership, the website of the Open Government Partnership, “Access to information means access to justice. Citizens armed with information can claim what is rightfully theirs. For this reason, OGP members are required to have laws guaranteeing the right to information.”
The Freedom of Information (FOI) Act, 2011, was meant to make public records and information more freely available, provide for public access to public records and information, protect public records and information to the extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences of disclosing certain kinds of official information without authorisation and establish procedures for the achievement of those purposes.
The FOI Act established the rights of citizens to apply for information or records in the possession of a public institution or private bodies providing public services, performing public functions or utilising public funds. Such information is to be made available to the applicant within seven days of the receipt of the application. The law also guarantees the citizens’ right to receive information that public institutions are obliged to proactively disclose.
The law equally empowered individuals to take legal action in court to compel public institutions to comply with provisions of the Act, including discharging their proactive disclosure obligations. The FOI Act also stipulated the category on information that may not be disclosed by public institutions, even upon application by applicants.
Section 29 of the FOI Act makes it compulsory for every public institution to submit to the Attorney General of the Federation, an annual report on all FOI requests they received, on or before February 1 of each year.
Access to public information is also a key aspect of the Open Contract Reporting (OCR) Project, which is meant to promote accountability and transparency in public procurement processes.
But, all available records show that the ministries, departments and agencies (MDAs) of the Federal Government are largely not complying with the FOI Act. Most FOI requests are simply ignored outright – in such instances, the applicants do not receive any feedback whatsoever to indicate that the application has been received, or is being considered, or has been approved or denied. In most instances, MDAs only respond to FOI applications just to inform applicants that the request has been denied.
Between 2018 and August 2020, The ICIR has filed about 310 FOI requests to different Federal Government agencies. Out of the 310 FOI requests, 64 (20.65 percent) received a response; 13 (4.19 percent) were referred to another agency; 187 (60.32 percent) are still pending as there was no response of any form from the concerned agencies, and 46 (14.84 percent) were denied by the agencies.
Also, between August and October 2020, The ICIR has filed 11 different FOI requests to some Federal Government agencies but none of the applications received even an acknowledgment, let alone a response.
The FOI requests were sent to the Niger Delta Development Commission (NDDC), National Primary Health Care Development Agency (NPHCDA), Ecological Fund Office (EFO), Association of Local Governments of Nigeria (ALGON), Federal Road Safety Corps (FRSC), Federal Ministry of Finance, Budget and National Planning and the Federal Ministry of Works and Housing.
In the FOI requests, The ICIR asked for details of procurement contracts approved by the agencies.
Specifically, on August 18, The ICIR requested that the NPHCDA should provide details of capital releases on the construction of primary health care centres (PHCs) in the FCT between 2016 and 2020.
More than two months since the FOI request was filed, The ICIR is yet to get a letter acknowledging the receipt of the request or the actual response to the request.
Again, on September 10, The ICIR filed another FOI request to the NPHCDA seeking details of contractors who got a contract for the renovation of existing primary health centres and construction of new ones in Anambra State. Out of the several requests sent to the NPHCDA, this particular request was only responded to on November 11, a month after the application was made.
Section 4 of the FOI Act provides that public institutions shall within seven days of receiving applications make the information available to the applicant. Despite a reminder sent to the NPHCDA on September 21, The ICIR is yet to get any response on the earlier application for details of contracts for construction of PHCs in the FCT between 2016 and 2020.
In the same vein, on October 2 and October 5, The ICIR requested from the NDDC details of approved contracts and benefiting contractors for road construction/rehabilitation projects in Edo and Abia states. The NDDC is yet to respond.
On October 7, an FOI request was also sent to the Ecological Funds Office (EFO), requesting details of its funded projects in the South-East between 2015 and 2020. More than a month after the application was filed, the request is still pending as the EFO has not responded.
Another FOI request was submitted to the NPHCDA on October 14 seeking details of primary healthcare projects in Kunchi and Lamba local government areas of Kano State. The NPHCDA has also failed to respond to the request.
On October 28, The ICIR sent another FOI request to the Association of Local Governments of Nigeria, (ALGON), seeking details of primary healthcare projects in Kunchi Local Government Area of Kano State. The ICIR equally sent requests to the FRSC, Federal Ministry of Finance, Budget and National Planning, and the Federal Ministry of Works and Housing, seeking different procurement-related information, on the same date.
Only the FRSC has sent an acknowledgment copy confirming the receipt of the request, while others have not made any response as of the time filling this report. However, a month after it acknowledged receipt of the request, the FRSC has not made the information available to The ICIR.
- Open Government Partnership has not made government more transparent, accountable in Nigeria
Executive Director of Media Rights Agenda in Nigeria, Edetaen Ojo, was part of the team that drafted the FOI law, and equally served as the civil society co-chair of the National Steering Committee of the OGP. In an interview with The ICIR as part of this report, Ojo noted that, contrary to expectations, so far, the adoption of the Open Government Partnership initiative by the Federal Government had not made governance more transparent and accountable in Nigeria.
”While the Open Government Partnership has the potential to make governance more transparent, accountable and responsive to the needs of citizens, it has not achieved any of these,” he said, noting that there does not appear to be a commitment on the part of all concerned to ensure that governance becomes more transparent, accountable and responsive to the needs of citizens.
Ojo also stated that the implementation of the FOI Act in Nigeria has been extremely disappointing. He blamed the poor implementation of the law on the President Muhammadu Buhari-led administration’s unwillingness to do away with the ‘culture of secrecy’ in government.
Speaking further, Ojo said, “It is particularly so because we have an administration that came to power on the basis that it will eliminate corruption in the country. We know that corruption thrives in an atmosphere of secrecy. In effect, the fight against corruption cannot be won where the government is unable to overcome the challenge of secrecy. But it is clear that the government has no commitment whatsoever to dismantling the culture of secrecy in governance that has engulfed it and enabled corruption to thrive. The major feature of freedom of information laws is their capacity to create openness in government, ensure transparency and accountability on the part of public institutions. Yet, our public institutions continue to disregard their duties and obligations under the FOI Act with impunity, thereby undermining any change.”
He pointed out that there is no single instance where any public institution has been sanctioned or even reprimanded for failure to meet their obligations under the FOI Act or to disclose information to members of the public.
“Indeed, the situation with the FOI Act has thrust on us one of the saddest examples of a public officer misconducting himself. Section 29(6) of the FOI Act provides that: “The Attorney General shall in his oversight responsibility under this Act ensure that all institutions to which this Act applies comply with the provisions of the Act”. Yet, in many instances, we have a situation where public institutions fail to comply with the provisions of the Act and when citizens go to court to compel them to comply, the Attorney-General of the Federation, the person who has oversight responsibility under the Act, the person who ought to ensure that all public institutions comply with the provisions of the Act, sends lawyers to court to defend the public institutions that are willfully violating the provisions of the Act. It is a tragedy. On any index by which you want to assess the implementation of the Act, it is simply scandalous,” Ojo observed.
Although section 29(1) of the FOI Act requires all public institutions to submit annual reports to the Attorney-General of the Federation every year, nine years since the law came into force, there has not been any year where up to 10 percent of public institutions submitted reports.
Yet, despite mamandatory provisions of Section 29(6), which stipulated that the Attorney-General of the Federation shall, in his oversight responsibility, ensure that all government agencies comply with the Act, the AGF does absolutely nothing to ensure that the public institutions complied with this requirement.
Indeed, annual National Freedom of Information Compliance Ranking reports – co-produced by The ICIR, Basic Rights Watch, R2K (Right to Know), Media Rights Agenda, Public and Private Development Centre and BudgIT – indicates that majority of the MDAs do not care about the FOI Act.
The National FOI Compliance Ranking assesses MDAs by a number of parameters, including proactive disclosure of information, level of disclosure, timeliness (responsiveness), FOI training, FOI desk officer and submission of FOI annual report.
The 2020 National FOI Compliance Ranking assessed 213 MDAs.
One hundred and sixty-one (161) out of the 213 MDAs recorded ‘NO’ on all parameters – No Proactive Disclosure, No Response, No Disclosure, No FOI Training, No FOI Annual Report and No Details on FOI Desk Officers – meaning that they did not bother complying with the FOI Act.
The remaining 52 MDAs who registered points on some of the parameters recorded low marks – only the Bureau of Public Service Reforms (BPSR) and the Nigerian Investment Promotion Council (NIPC) got up to 50 points, as they came first and second with 58.75 points and 54 points, respectively.
Ojo told The ICIR that inaction on the part of relevant government officials, particularly the Attorney General of the Federation, was responsible for the high level of non-compliance with the FOI law.
”Nobody in the government says or does anything, thereby signaling all public institutions that they are free to continue to disregard the provisions of the Act and operate in secrecy,” he said.
While most FOI requests do not receive any response from the concerned MDAs, majority of responses, when they are given, are just to notify applicants that the request was denied. The ICIR‘s experience has shown that MDAs reject FOI requests for wrong reasons which do not conform with provisions of the law.
Ojo said the MDAs are able to get away with the practice because they are not being sanctioned for doing so.
Although Section 7(5) of the FOI Act makes it an offence for any public officer or institution to wrongfully deny an applicant access to information and prescribes a fine of N500,000 on conviction, no public officer or institution has ever been punished under this provision because the Attorney-General of the Federation, whose duty it is to prosecute defaulters, has never prosecuted any public officer or institution for wrongful denial of access to information.
The prevailing situation means that there is no instrument to compel the MDAs to disclose information to applicants.
However, Ojo said the MDAs would have no choice than to comply with the law if the President and the Attorney General of the Federation compel them to make necessary information available to applicants.
“If the President were to signal today to all public institutions that he would no longer condone non-compliance with the provisions of the FOI Act and indeed, if he were to go further and sanction one or a few heads of public institutions that are violating the provisions of the Act, all the others would sit up and begin to comply. But of course, the President is clearly not interested and does not even appear to be paying any attention to the issue. The Attorney-General of the Federation whom the law has given the responsibility to ensure compliance by all public institutions is also not interested and has not made any meaningful effort to get public institutions to implement the Law and comply with its provisions,” Ojo said.
A major challenge with the implementation of the FOI Act is that the law does not provide for any sanctions for non-compliance.
Team Lead, Programs and Administration, OGP National Secretariat, Chidimma Ilechukwu, told The ICIR that efforts are being made to introduce sanctions for non-compliance in a planned amendment of the FOI Act.
Ilechukwu however stressed that the OGP National Secretariat was only a coordinating organ, and was not responsible for implementation of the FOI law.
She explained that the First National Action Plan, 2017 – 2019, developed by the secretariat around commitments to asset recovery, open budgeting and access to information which President Buhari made when signing onto the OGP, focused on developing the capacity of the MDAs to implement the FOI Act. The Second National Action Plan, 2019 – 2022, will continue to focus on providing training for the MDAs and also engaging civil society organisations on advocacy.
”Nigeria joined the OGP for the purpose of transparency and accountability. I can’t speak for the MDAs but there is this culture of secrecy that is already embedded in civil servants. Our own role in the OGP National Secretariat is to keep pushing that the MDAs do the right thing but we are not an implementation agency. Nigeria can do better, we need to get to the stage of proactive disclosure of information,” Ilechukwu added.
Despite records which show that MDAs have largely failed to comply with the FOI Act, Mr Ochibor Joseph Gowon, Head of the FOI Unit in the Federal Ministry of Justice, which coordinates the implementation of the law, told The ICIR that agencies of the Federal Government have been responsive to applications for information from members of the public.
“From reports we get from MDAs, we have more responses than non-responses to requests for access to information,” Gowon said.
He suggested that misgivings over the implementation of the FOI stemmed from lack of understanding of the nature of the public service by the media and the NGOs. “The press and the NGOs should understand the structure of the civil service – you should understand the body language of the people you are dealing with but most of the time you find that most of the NGOs are confrontational. I wouldn’t want to say that the FOI Act is nascent but it is a process that we are getting into. The British law that we got the FOI Act from took five years for implementation to commence but in our case we commenced implementation immediately and those teething challenges are what we are addressing today,” Gowon said.
Further defending the MDAs, Gowon stressed that implementation of the FOI Act includes denying requests. “If I deny all the requests that come to me I am implementing the Act but let it be that the requests were denied for the right reasons,” he said.
Rather than blame the MDAs for non-compliance with the FOI Act, Gowon blamed the media and the civil society for what he described as ‘low level of engagement’ with the FOI Act. “I feel that the challenge here is that the level of engagement has not been much within the private sector. We don’t get as much requests as expected and I think it is because of lack of awareness concerning the law on the part of the citizens,” he said.
Ojo, however, faulted Gowon’s claim that there was a low level of engagement with the FOI Act on the part of the media and the civil society. According to him, it is impossible to determine the extent to which members of the public are making use of the FOI Act because the Office of the Attorney General of the Federation, which should ordinarily be the source of data for the assessment, does not have the records.
“With less than 10 percent of public institutions submitting their reports to the office annually, the Attorney General of the Federation has no way of knowing what is happening in the over 90 percent of the public institutions that are not submitting any report,” Ojo said, adding that a situation where citizens make requests for information and they are wrongfully denied access to the information without consequence would not be encouraging for anyone who might ordinarily want to ask for information.
Ojo stressed that the ministry of justice cannot say that citizens are not making enough use of the FOI Act when it is doing nothing to assist those who are actually trying to use it but are being frustrated.
However, Gowon said the ministry of justice was working with relevant committees of the House of Representatives to consider ways of tying compliance with the FOI Act to approval of MDAs’ budgetary allocations, as a way of improving compliance.
Checks by The ICIR revealed that a ‘naming and shaming’ approach which was adopted by the ministry to encourage compliance in the past did not produce any positive result.
Records in the Federal Ministry of Justice show that 90 out of over 500 MDAs submitted annual reports on FOI Act compliance in 2019. The number (90) is the highest so far in any year since the law came into effect in the country in 2011.
- Beyond FG’s lack of political will, implementation of FOI Act undermined by structural, funding, capacity challenges in MDAS
However, beyond the lack of political will by the Federal Government to compel compliance with the law, and the prevailing culture of ‘secrecy’ among civil servants concerning information, The ICIR also discovered that ‘structural challenges’ have contributed to the poor implementation of the FOI Act in the country.
Investigations by The ICIR revealed that only a few MDAs currently have FOI units – the exact figure is vague but only 13 agencies have set up FOI portals.
The FOI unit of the Federal Ministry of Justice, which coordinates the implementation, is ‘struggling’ to set up FOI units in the MDAs, according to sources.
Another major challenge discovered in the course of investigations by The ICIR is that most of the MDAs do not have any budget for implementation of the FOI Act. In the absence of a budget line, in most of the MDAs, the FOI programme is funded with ‘handouts’ from the CEO’s office.
The ICIR further learnt that a memo was submitted to the Federal Executive Council, seeking to authorise the Head of Service of the Federation to direct all MDAs to set up FOI units. The memo was first submitted in December 2019 and resubmitted in March 2020. But no action has been taken on the matter, an indication that there is a lack of political will on the part of the Federal Government to drive the implementation of the FOI Act in the country.
Investigations by The ICIR also revealed that lack of proper record keeping in agencies of the Federal Government is also helping to undermine the implementation of the FOI Act. Civil servants in some FOI units in the MDAs, who spoke to our correspondent in confidence, noted that in most instances, records in government agencies are not kept in such a way that information could be easily made available in seven days as stipulated by the law.
“The best that can be done in most cases is to respond to the applicant within seven days to say we have received the application and that will be all,” a civil servant in one of the FOI units, who pleaded anonymity, told The ICIR.
Ojo noted that the opaque nature of the activities of the Federal Government and the states encourage corruption to thrive in the country, in spite of the President Buhari administration’s anti-corruption campaign.
Ojo told The ICIR, “I believe that the activities of the Federal Government and most of the state governments are becoming increasingly opaque. It is hard to understand why the Federal Government will want its activities to be shrouded in secrecy, unless it really want to encourage rampant corruption in the public sector. But regardless of what its intentions are, the consequence of its attitude is that corruption continues to thrive in many public institutions.”
He observed that series of financial misappropriation that are continually revealed in audit reports by the Office of the Auditor-General of the Federation shows that the opaque nature of government activities was enabling corruption in the public service. Ojo said, “If you need proof of this, just pick up any of the audit reports by the Auditor-General of the Federation for any of the years since this administration has been in power and you will find mind-boggling acts of sheer brigandage and nobody is held accountable.”