Nigeria’s Access to Information Law is Not Working
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After 18 months in operation, Nigeria’s Freedom of Information Act still struggles with huge challenges
Recently, a civil society group, the Nigerian Contract Monitoring Coalition, instituted a case against the Power Holding Company of Nigeria, PHCN, at a Federal High Court in Abuja.
The suit, instituted on behalf of the Coalition by the Public and Private Development Center, PPDC,was sequel to the refusal of PHCN to release details of a World Bank- funded PHCN contract for the supply and installation of High Voltage Distribution systems in its facilities in Abuja, Lagos, and Ibadan.
In August, the coalition had applied to PHCN and the Abuja Electricity Distribution Company Plc, one of the beneficiary companies, for copies of procurement documents and information relating to the contract for the supplies materials.
Information requested by the coalition included the report of the needs assessment that preceded the contract, documentation on the design and specification requirements, bidding documents issued to all bidders, a list of all the contractors that submitted bids, copies of the letters of award, as well as the names and addresses of all distribution companies on whose behalf the procurement was undertaken.
The request was turned down by both PHCN Abuja and Electricity Distribution Company Plc, leaving the coalition with no option but to approach the court with a motion exparte seeking the court’s order granting it leave to apply for the prerogative order of mandamus to compel PHCN, its general manager in the management unit, B.C. Nwozor, and the attorney-general of the federation to provide it with details of the contract.
In a significant ruling for access to information in Nigeria, Justice Ademola granted the coalition’s application after hearing its lawyer’s arguments in support of the motion. The ruling was a major victory for the coalition as PHCN immediately after the judgment released the information requested.
About 18 months after the Freedom of Information Act was passed into law, Nigerians still have a difficult time accessing public records. In most cases, government officials, ministries and agencies merely ignore requests for information.
Thus, like the Nigerian Contract Monitoring Coalition, many individuals and groups, particularly in civil society, have resorted to the courts to force information out of state officials and agencies.
One of the individual FOIA requests that ended up in court is the one by a legal practitioner, Ojukwu Chikaosolu, who applied for a court’s order to compel the executive secretary of the Petroleum Products Pricing Regulatory Agency, PPPRA, Reginald Stanley, to release information on the list of companies that had obtained import licenses and the volumes allocated in their respective permits.
Chikaosolu had on July 19 sought for the information with a view to exposing sharp and fraudulent practices in the petroleum import transactions through an informative and open process.
He also demanded to know whether the executive secretary had resigned his employment with the Nigerian National Petroleum Corporation, NNPC, before being appointed to his present position.
The agency refused to release the requested information claiming that it does not fall within the public information envisaged by the FOI Act.
The agency, in a letter signed by Ja’afar Abubakar in response to the inquiries wrote, “We …regret to inform you that the request is denied as the information required does not fall within the information that is caused to be published by a public institution under the FOI Act.”
However, Justice Gabriel Kolawole of the Abuja Federal High Court granted the lawyer the requested leave for an order to compel the executive secretary and the agency to release the requested information.
The Nigerian Contract Monitoring Coalition and Chikaosolu were lucky as they got rulings compelling the information requested to be released. Many similar requests have not gotten such reliefs from the courts.
For instance, Boniface Okezie, president, Progressive Shareholders Association, PSA, is in court with the Central Bank of Nigeria, CBN, after the apex bank ignored his request for information. But the wheel of justice is rather slow.
Okezie had, in January, 2012, sought to know the cost to the central bank, the government and people of Nigeria so far, of the banking reforms instituted by the CBN. Specifically, he wanted to know the amount of legal fees paid and how much of the amount is paid to and/or to be paid to the law firms of Olaniwun Ajayi and Kola Awodein & Co.
Also of interest to Okezie is the total sum paid in respect of the prosecution of Cecilia Ibru, former managing director of Oceanic Bank Plc and how much of this sum was in the form of commissions on the property recovered from her.
In his January 26th letter to the CBN, Okezie also demanded to know the total cash and value of property recovered from Cicelia Ibru, the whereabouts of the money and property recovered, and what part of this cash and property has been returned to Oceanic Bank and/ or its shareholders. The case is still in court and Okezie still has not gotten the information he asked for.
What worries many Nigerians is that in some cases even when the court instructs public institutions to disclose information, such court orders are ignored.
This is a dangerous trend, said Ene Enonche, national coordinator of Right to Know, R2K, an access to information group, who is worried at the refusal of some public institutions to comply with the FOI Act even after court judgments have been issued.
“While the testing of the FOI Act in our courts is good for precedence and interpretation of the law, it is more sensible for public institutions to develop the will to comply with the clear provisions of the Act”, she said.
According to her, open and transparent governance is not enhanced when citizens feel that they need to resort to the long and arduous path of litigation before they are able to obtain information from public institutions.
“Apart from the length of time it would take for litigations and appeals, there is also the considerable expense of the entire legal process, beyond the reach of many Nigerians,” Ene observed.
Nigeria’s access to information law was passed on May 28, in the dying days of the last legislative assembly, after nearly a decade in the National Assembly. The FOI Act affords every Nigerian the right to access or request for information domiciled with any public official, agency or institution. Apart from laying out the scope of public information the public can access, the ACT also provides details about time limits, exemptions, proactive publication of information as well as mandatory training for officials of government.
In a society where a culture of secrecy has traditionally surrounded information about government, where state institutions hardly keep records and where civil servants have for decades been protected by the Official Secrets Act and similar laws from disclosing sensitive information, it is obvious that a lot needs to be done to make the Act work.
Unfortunately, however, government has neglected doing many things that ought to be put in place by the government to facilitate implementation have been neglected. For example, Section 13 of the FOI Act provides that government agencies will train their staff to be able to comply.
“Every government or public institution must ensure the provision of appropriate training for its officials on public’s right to access to information or records held by government or public institutions,” the Act mandates.
But training for public servants, where it has been done, has been uncoordinated and, at best, haphazard and half – hearted. Thus, almost two years since the enactment of the FOI Act, government officials are yet to come to terms with their responsibilities under the Act.
One agency of government that has obviously not come to grasp with what the Act demands of it is the Code of Conduct Bureau, CCB, which has repeatedly denied Nigerian access to the assets declaration of public officers.
Several civil society organisations, including the African Centre for Media and Information Literacy, demanded from the Bureau details of the assets declared to it by President Goodluck Jonathn. This rash of demands for the President’s asset to be made public followed a declaration by Jonathan during a televised media chat in June that he did not give a damn about public declaration of assets.
“I don’t give a damn about that. The law is clear about it and so, making it public is no issue and I will not play into the hands of the people. I have nothing to hide.
“I declared publicly) under the late President Umaru Musa Yar’Adua because he did it, but it is not proper. I could be investigated when I leave office.
“You don’t need to publicly declare it and it is a matter of principle. It is not the President declaring assets that will change the country,” Jonathan said to the disappointment of many Nigerians.
However, Sam Saba, chairman of CCB has denied Nigerian access to Jonathan’s asset declaration, arguing that the FOI Act conflicts with the Constitution.
Saba has relied on Section 3 (c) of the Third Schedule of the 1999 constitution which empowers it to ”retain custody of such declarations and make them available for inspection by any citizen of Nigeria on such terms and conditions as the National Assembly may prescribe.”
The CCB chairman wants an Act of parliament to spell out the conditions under which it can disclose to the public declarations made to it by public officials.
However, that is exactly what the National Assembly has done with the FOIA Act, lawyers have pointed out. But the Bureau is adamant that it will not give Nigerians access to details asset declared by public officials.
One other obvious challenge in the implementation of the access to information law is that government institutions have hardly had to keep record until now. Thus, when Nigerians seek information, apart from the ignorance of public officers about the Act, those who request information or records confront situations where such information do not even exist.
This was the experience of the International Centre for Investigative Reporting, ICIR, last year. In doing a report on the anti – corruption campaign in Nigeria for this website, the ICIR, in June 2011, asked the Independent Corrupt Practices and other related Offences Commission, ICPC, for a list of the high profile cases it had prosecuted. The Centre equally wanted details about the charge, amounts, courts and status of the case. The commission’s resident consultant, Folu Olamiti, asked for time to provide the list. After three months, when it was obvious he was giving excuses and would not provide the information, the Centre filed a FOIA request demanding the aforementioned information. The anti – graft agency completely ignored the FOIA request.
Not ready to engage in a court battle, when the Centre made discreet efforts to get the information from several sources in the commission, the shameful truth came out that the ICPC had not compiled or kept a record of its cases since inception.
The executive director of the ICIR, Dayo Aiyetan, observes that one of the reasons why Nigerians must continue to force the implementation of the Act through FOIA requests so that government officials would be compelled to keep records and thus build a culture of open access to information in Nigeria.
But the road to implementation of the Act continues to be riddled with challenges. One of the biggest problems to making the Act effectively take off is the absence of a template, a kind of roadmap for government officials to follow.
For a country without precedents in open access to public information, government needs to evolve a coordinated public service – wide modality for the implementation of the Act. Stakeholders looked up to the office of the attorney general of the federation to provide such coordinated approach but that has not happened.
The government also set up an inter – ministerial committee on the implementation of the Act but no serious work appears to have been done to create the environment for easy implementation of the Act.
This has led concerned citizens, journalists, and civil society groups to express serious concerns at the slow pace of compliance with and implementation of the Act by government and public institutions.
This, to Media Rights Agenda, MRA, which was at the forefront of the crusade for an access to information law in the country, is, perhaps, the biggest problem in its implementation. MRA specifically asks the presidency to prevail on the inter-ministerial committee on the implementation of the Act to complete its assignment and release the modalities for the speedy, effective and efficient implementation of the Act.
It equally calls on the attorney-general to exert pressure on all public institutions to comply with the provisions of the Act especially the aspect of filing their annual implementation reports.
In 2011, when N80 million was provided in the budget of the head of the civil service of the federation for producing a roadmap for the implementation of the FOI Act, stakeholders heaved a sigh of relief, hoping that finally with a roadmap, public officials will have a guide to follow in implementing the Act.
However, the office of the head of service has produced no such roadmap. And it cannot explain what happened to the budgetary provision. This year again, another N30 million has been proposed for creating a roadmap by the head of service.
But speaking to our correspondent, Muhammed Danjuma Manga, an assistant director in the office of the head of service of the federation, insisted that the responsibility of providing a roadmap for the implementation of the FOI Act rests with the federal ministry of justice.
Even then, Muhammed said the office of the head of service has been collaborating with the office of the attorney-general to create the necessary enabling environment for the effective implementation of the Act.
This, according to him, has been done through training workshops for both directorate cadre and desk officers on records/ document management.
This collaboration was attested to by Adekunle, senior special assistant, SSA, to the attorney general. Curiously, however, Adekunle contends that there is no budgetary provision for the exercise.
“Although there is no budgetary provision for it, the ministry of justice, in collaboration with the office of the Head of Civil service, drawing from the goodwill of the minister and the United Nations Development Programme, UNDP, has taken steps to provide the enabling environment for the effective implementation of the FOIA.”
But even while Nigerians wait for government and its agencies to get their act together in providing implementation modalities, there are aspects of the act that public institutions can start to put to effect.
For example, Enonche, observes that government agencies and officials do not need a roadmap or guide to execute the proactive aspects of the Act.
Although Section 9 of the FOI Act demands that public institutions keep and maintain records, Section 2 specifically mandates such institutions to proactively publish the information.
The section extensively requires public institutions should publish in print, electronic and online media information about what it does, the kind of public records it deals with, documents on its rules, policies, names and salaries of its employees as well as information concerning public funds it spends, including records of contracts, licenses and grants.
Enonche is not happy that so far no public institution in the country has fully complied with the proactive disclosure provisions mandated by the Act and also observed that only 23 public institutions submitted the mandatory annual compliance report to the Attorney-General of the federation.
One aspect of the Act that worries many stakeholders and which many say might disturb effective implementation of the Act are the exemptions it guarantees. The FOI Act is replete with more exception sections and clauses that tend to deny access to information than those that grant it, a situation which may be exploited by public servants to lock out information seekers.
For example, while only two sections (sections 1&3) deal with access to information, ten (7, 11,12,14,15,16,17,18, 19, and 28) deny the public access to information. Also, the time limit provided for in the law for granting or refusal of requests as provided for in section 4 of the Act is short and unrealistic.
By far the most daunting challenge to the effective implementation of the FOI Act in Nigeria, according to Sunday Okpeh, a 500 level law student of the University of Jos, is the existence of subsisting laws that conflict with it.
These, according to him, include among others, the Official Secrets Act, the Evidence Act, and the Statistics Act.
These laws, Okpeh notes, are yet to be repealed contrary to section 28 of the FOI Act, which makes provision for the amendment or outright repeal of conflicting laws. Public officials who keep information required by members of the public are bound to fall back on these laws in preventing access public information.
However, Adekunle, SSA to the minister said these extant laws should not be seen to be conflicting with the FOI Act as it supersedes them. He therefore advised public officials to disregard the old laws and respect the FOIA.
But equally worrisome to many are provisions of the Act which tend to favour the refusal of information when national security, defense or international affairs is concerned.
Another challenge is the pervasive ignorance among journalists, chief purveyors of information, about the FOI Act and this is likely to constitute an impediment to its effective implementation as many of them appear to be unaware of its provisions and their duties and obligations under it.
This explains why Media Rights Agenda advises Journalists to play their watchdog roles of ensuring that the law works and transparency, accountability and ultimately, good governance is entrenched in Nigeria.
But for others, it does not really matter who is testing the law as long as it is done. The important thing, it is observed, is that public information with which officials and agencies of government can be made accountable is accessible to the ordinary Nigeria.
Such public accountability is the reason behind the request by the International Press Center, IPC, another civil society group, for information on the state of the implementation of President Goodluck Jonathan’s campaign promises.
Explaining the reasons for the request, director of IPC, Lanre Arogundade, said beyond reporting campaigns by politicians, the media has the responsibility of documenting and monitoring the implementation of their promises in order to institutionalize electoral accountability in Nigeria.
He however notes that this is not possible in an environment where the necessary information is hoarded by persons and institutions that have it.
For Edetaen Ojo, executive director of MRA, for Nigerians to enjoy good governance, there is an urgent need for the effective implementation of the FOI Act, and for this to happen Nigerians must continue to put the Act to test and public officials on their toes.
Enonche also believes that it is the responsibility of all Nigerians to ensure compliance to the Act. She therefore calls on the entire citizenry to rise up and exercise their rights under the Act as the failure of the law portends grave danger to the fight against graft in this country.