Application of Nigerian FOI Law to States Contested

17 February 2014

Whether the new Nigerian freedom of information law automatically applies to the states remains an issue in the courts and the subject of lawyerly debates.

One court ruling held that the 2011 FOI law did apply to the states. (See previous FreedomInfo.org report.) A judge in Oyo ruled in November that the federal FOI law covered the state.

But in another state, Lagos, officials maintain that the state must adopt its own law. A civil society group is challenging that interpretation.

The Lagos State government Feb. 10 asked a Federal High Court in Lagos to dismiss a FOI application filed Dec. 1 by the Socio-Economic Rights and Accountability Project (SERAP), demanding information on the state budget on education, according to the group and a newspaper article by Olugbenga Soyele.

The group wants the state to release information on how it spent a $90 million loan from the World Bank to improve education in the state’s 639 secondary schools.

Lagos argued that the national FOI law applies only to the federal government. The matter is scheduled to be heard March 20.

Debate Among Attorneys

The issue divides attorneys, according to an article in Punch.

Constitutional lawyer Itse Sagay said the FOI Act had to be domesticated at the state level before being binding on state governments.

He is quoted as saying: “This is a federation. Quite a number of the federal laws do not apply to states. For example, the Child Rights Act does not apply to states. A state has to make its own. With regard to the FoI Act, the states have to pass their own laws too. It doesn’t bind the states at all.”

Legal practitioner, Mike Ozekhome, however, said:

The FoI Act applies as a statute of general application to all states in the federation and all parastatals in Nigeria, whether federal, state or local government. It is a statute of general application meant to enthrone transparency and accountability in governance across Nigeria.

Another legal practitioner, Onueze Okocha,  (SAN), said every public and private establishment was subject to the provisions of the Act. “I know that the FoI Act is a federal statute,: he said. “And in our principles of interpretation, whenever a federal statute has covered a subject matter of the legislation itself, it has covered the field.”

“Every federal law is binding on everybody, including every government, individual and corporation in Nigeria. So I don’t understand the basis upon which the Lagos State Government is now saying it is not bound by a federal statute,” he said.

Disagreeing, Emeka Ngige, told Punch, “The only way the FoI act can apply at state level is where the state decides to re-enact the provisions of the FoI Act in their own local legislation, like in Ekiti State.”

He argued that Section 3 of the FoI Act listed the public institutions which were required to provide their records upon request and that only federal institutions are listed.

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