The Next Step for Nigerian FOIA: Compliance/Enforcement Stupid!*

23 July 2014

By Oluwasegun Obebe

The Records, Information & Privacy Officer with the Department of Corrections, Washington, D.C., Obebe previously wrote an article for FreedomInfo.org about the Nigerian FOI law in August 2013.

 Obebe argues against automatic application of the federal law to the states.  FreedomInfo.org has written about a trend toward such application in the courts and the debate

Introduction

The hair-splitting contentions in the press and elsewhere over the applicability scope of the Freedom of Information Act, passed by the Nigerian National Assembly and signed into law by President Goodluck Jonathan on May 28, 2011 (FOIA 2011) would be amusing if a serious and weighty issue about this very significant law – the issue of compliance/enforcement – was not at stake and getting short shrift.

Shifting focus from the inquiry of how/what the Federal government is doing to enforce FOIA 2011 to the inquiry of whether the constituent States of the Federation should or should not be automatically bound by the law is comparable to the proverbial “cart before the horse” spectacle. A Yoruba elder might employ a more gripping expression: “A fi ete sile pa lapalapa.” Translation: ignoring leprosy while seeking cure for a mere skin irritation. Those who aspire to seriously engage in the debate of public interest issues and the guidance or formulation of public opinion cannot afford to be distracted by an issue so comparatively insubstantial. Legal prescriptions are meaningless if they do not generate compliance, or sanction for a breach. Meaninglessness gets compounded when un-enforced legal prescriptions metastasize, as in forcing the Federal FOIA 2011 on reluctant States. Rather than interpreting FOIA 2011 as a willy-nilly obligation on States to “domesticate” and implement, sustained pressure should be mounted on both the Executive and Judicial branches of the Federal government to enforce compliance with the law. As a seed that is assertively planted on Federal soil, metaphorically, the law should be watered and fertilized, so that it can be well rooted and allowed to grow, spread and transplant to the States.

FOIA 2011 is 3-year-old, but there is no hard and credible evidence that the agencies of the Federal government, which the law clearly binds are complying with its dictates. Further, “persons” (i.e., everyone) to whom the law gives access right have been largely silent. To be sure, there have been sporadic FOIA requests filed by a number of advocacy groups, but there is precious little beyond cosmetics and lip-service to celebrate about the law.

It has not triggered any measurable flow of FOIA requests, and has not produced substantive and consequential outcome, either voluntarily effected by a Federal agency or elicited by a court order. Can focus be kept on the Federal government until it is successfully pressed into full compliance with FOIA 2011 so that the law’s success and effectiveness at that level will be worthy of emulation? Good governance can be infectious, and promotion of “good government” is a declared purpose of the 1999 Nigerian Constitution.

Hoping for a “laser-beam” attention to FOIA 2011 implementation/enforcement challenge, this article seeks to neutralize the question of whether the law automatically binds the States and argues that it does not by “plain meaning” reading of the law and by considering the inherent and constitutionally declared federalism of the Nigerian nation-state.

Plain Meaning Reading

As a cannon of statutory construction, “plain meaning rule” instructs that the plain meaning of statutory text be followed when interpreting a statute, except if the text suggests an absurd and unjust outcome. Granted, FOIA 2011 does not expressly state that it applies only to the Federal government. But, it is nowhere plainly stated that it binds States either. Yet, automatic binding effect of a federal law on the constituent States cannot be assumed or unquestionably accepted in a federalism, if the subject matter of the legislation is not on the Exclusive Legislative List.

FOIA 2011 established “the right of any person to access or request information … which is in the custody or possession of any public official, agency or institution….” Its section 29(9)(b) defines information as “any term used … in reference to information or record which includes any information that would be held by a government …” Section 29(9)(a) defines government as “any executive department, military department, government corporation, government controlled corporation, or other establishment in the executive branch of the government (including the executive Office of the President) …” It is important and revealing of legislative intent that the bolded part of the definition of government does not add “ … and the Office of the Governor”, leading to the logical conclusion that the law was not intended to bind States. In almost granular details, Section 2 of FOIA 2011 directs each public institution to a) record and keep information about all its activities, operations and businesses, b) ensure the proper organization and maintenance of all information in its custody in a manner that facilitates public access to such information, c) publish certain information and records of certain activities, and d) periodically update the published information. The detailed legislative directives of FOIA 2011 extend to training requirements, reporting requirements and civil as well as criminal sanctions for non-compliance.

A legislative prescription with sweeping compliance details of this magnitude, entailing enormous and onerous financial burden and organizational restructuring, does not get imposed by a national government on a State government in a Federalism.

Restraint of Federalism

Federalism is a power-sharing constitutional arrangement, which necessarily imposes certain fundamental limitation on the power of national government to legislate for States. This limitation or restraint is embedded in what may be referred to as the status of “double citizenship” peculiar to people in a federalist country, whereby a person simultaneously exercises the rights, and discharges the duties, of citizenship of his State as well as those of the larger community, i.e., the country.

Sovereignty inheres in people – individual human beings – by whose consent governments are formed and government decision-makers are elected and appointed, to seek and attain the people’s welfare and security. This is the essence of participatory democracy, the best governmental-organizational system that human being has achieved in his quest for self-preservation since his “early man” “survival of the fittest” origin. Of this evolutionary milestone, a historian remarked that “the main justification for the appropriation of territory to governments is that the prevention of mutual mischief among the human beings using it cannot otherwise be adequately secured.” (HENRY SIDGWICK, THE ELEMENTS OF POLICS 252 (4th ed. 1919.) And, of immediate and direct relevance, the Nigerian Constitution makes plain that “the Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice” and further declares that “sovereignty belongs to the people of Nigeria from whom government … derives all its powers and authority, … the security and welfare of the people shall be the primary purpose of government” and “the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.” (Chapter II, Section 14.)

In a federalism, the national government, in structure, is typically a prototype of each of the constituent State: a tripartite governmental arrangement of executive, legislative and judiciary branches, with separation-of-power/checks-and-balances relationships, dotted with elective public offices. The elected public officials – i.e., the President and Governors (Executive branch) as well as Members of the National House of Assembly and the State House of Assembly (Legislative branch) – are core to democratic federalism, since they appoint the other governmental actors (staff of the legislative branch, judges in the judiciary branch, Executive branch cabinet heads, administrators of agencies, etc.).

Incumbents of elective public offices and/or those who seek to replace them must submit to fitness evaluation by the electorate at periodic national and state/local elections. National government compact did not take away self-government and its essential ingredients from local communities. Self-government, in fact, percolates from the bottom up in a Federalism. As made famous by a long-time Speaker of the United States House of Representatives, the late Thomas P. O’Neil, “all politics is local” after all. Citizens must be able to evaluate the fitness of elected State officials based on their performance, or lack thereof, as they similarly do with elected national government officials, and hold both equally accountable at the polls. Evaluation of performance in office is an elections-judgment leverage that must not be taken away from them. For the national legislature in a federalism to direct state legislature to adopt, or otherwise assume the burdens of implementation and enforcement of a particular federal law is tantamount to taking the leverage away from the people. Worse still, if such directing is not restrained, elected State/local executive and legislative office holder will thereby be unfairly held accountable at the polls for decisions they did not make. This outcome will fundamentally undermine democratic governance.

And that explains the statutory/constitutional interpretation test applied by the Supreme Court of the United States in its “commandeering” line of cases. United States, of course, has served as a model of federalism for others, including Nigeria. To mature Nigerian federalism, Nigeria can, and should, benefit from the “commandeering” test applied in the U.S. Supreme Court jurisprudence.

In Hodel v. Virginia,Surface Mining & Reclamation Ass., Inc., 452 U.S. 264, 288 (1981), the Court decided that the Federal legislature may not “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” FERC v. Mississippi, 456 U.S. 742, 758-759 (1982) followed the Hodel decision, noting that the “[Supreme] Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations”, at 761-762. In New York v. US, 505 U.S. 144 (1992), the Court noted that the constitutional question of “discerning the proper division of authority between the Federal government and the States” is “as old as the Constitution.”

The fact of New York v. U.S., essentially, is the challenge of disposing low level radioactive waste being generated in the United States, and the question is whether the federal government is permitted by the federal structure of the US system of government and the Tenth Amendment to require States to pass law “providing for the siting and financing of a disposal facility …” and, in effect, “direct or otherwise motivate the States to regulate in a particular field or a particular way.” The Court found that “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” A legal researcher has interpreted New York v. U.S. to mean that “under the Tenth Amendment,” which is “one of the most clear examples of a federalist principle”, “Congress cannot ‘commandeer’ either the legislative process of a state or the services of state executive branch officials.” (Thomas, K., Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power, Congressional Research Service Report, Prepared for Memebers and Committees of Congress, Summary page (September 23, 2013.)

The Tenth Amendment to the US Constitution declares that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” As interpreted by the US Supreme Court, “the Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States’ integrity or their ability to function effectively in a federal system.” (Fry v. United States, 421 U.S. 542, 547 n. 7 (1976).) The Fryer court recognized a historical fact: that the original thirteen colonies existed separately prior to the formation of the United States, and that residual powers of self-government were retained to the States to validate their individual uniqueness as political entities, and to enhance local control of matters that are of local interest. This logic applies no less persuasively in Nigeria as a nation of pre-existing kingdoms and distinct ethnic communities of unique cultural identities, selfishly cobbled together by the British colonialists for their administrative convenience.

So, experience persuaded the US Founding Fathers to write the Tenth Amendment into their constitution in acknowledgement of the uniqueness of the individual states. The Nigerian Constitution does not now have States’ “reserved power” provision. It should, because it merits it. As sovereignty-qualifying factor, the history of the separate colonies formed by the early immigrants to the so-called “New World”, which evolved into “sovereign” states within a matter of few years, is no comparison with the deep roots of the Yoruba, Benin, Igbo and Hausa Kingdoms of the peoples now known as Nigerians. Revered constitutional law expert, Ben Nwabueze recently reminded us that “we all belong to an ethnic nationality. It is sociological reality.” The cultures, civilizations and uniqueness of these various Nigerian ethnic groups remain distinct and deserve “Tenth Amendment”-type constitutional recognition.

Conclusion

There is no doubt that FOIA 2011 is a major law designed to expose corruption, stop it in its tracks, and advance democratic governance. If effectively deployed, and if a sincere commitment to compliance and enforcement is exercised, the law will compliment such other laws as Economic and Financial Crimes Commission (Establishment) Act, 2004 (EFCC) and the Corrupt Practices and Other Related Offences Act, 2003, the effect of which will be:

1) exposure of corruption,

2) prosecution of its perpetrators and

3) restoration of selflessness and patriotism in the government-governed relationship in Nigeria.

The human transition from primordial life style to civilization is so that the organized system (government) can be one that is formed by the people, administered by those elected by the people and serves the people. 

  • Political campaign strategist, James Carville, coined the phrase “The economy, stupid” to focus the attention of his campaign trail colleagues on the essential message in the 1992 Bill Clinton’s successful campaign for the presidency of the United States.
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