Nigeria: a case of progressive implementation

13 November 2014

By Edetaen Ojo and Ann Iyonu

Ojo is Executive Director, Media Rights Agenda.  Iyonu is Program Officer, The Right to Information Initiative (R2K), Nigeria. This is a chapter from a recently issued State of Right to Information in Africa Report 2014 and is reprinted with permission. (See previous FreedomInfo.org report.)

Apart from the African Charter on Values and Principles of Public Service Administration and the African Statistics Charter, Nigeria has ratified all existing African Union treaties that recognise the right of access to information[1].

Significantly, Nigeria actively engages African Union mechanisms, including the African Commission on Human and Peoples’ Rights, where the country is up–to–date with reporting obligations in terms of article 62 of the African Charter on Human and Peoples’ Rights[2].

Nigeria’s Freedom of information Act was assented to by President Goodluck Jonathan on May 28th 2011, having been passed into Law a few weeks earlier by Nigeria’s bi–camera Legislature. The Law is now just over three years old. Nigeria’s FOIA was a product of collaboration between citizens, organized civic actors and the government. The advocacy for the passage of the Act took eighteen years of struggle dating as far back as 1993 during the regime of General Sani

Abacha. It was a bill before parliament for twelve years. This makes the Nigerian FOI advocacy the oldest in Africa, ahead of the South African PAIA, Africa’s first FOI Law, enacted in 2000. The FOIA is not the only legislation that mandates access to information in Nigeria[3]. However, the Act consolidates the right to information[4] and transforms the general arena of governance from one that was predicated on a foundation of secrecy, established by the Official Secrets Act and other laws and practices, to one where openness and access to information is the prescribed norm.

Nigeria’s centennial history before the passing of the FOIA was of colonial rule, military authoritarianism and civilian rule, none of which was accountable to the Nigerian public. The FOIA marked a breakthrough and was heralded as a transformational tool in eliminating corruption, consolidating a culture of transparency, open and participatory government in Nigeria and holding promise for an empirical basis for policy development, implementation and evaluation that would promote efficiency in governance. The passing of the FOIA simply marked a starting point for the achievement of these noble, but lofty, aspirations. However, as a blueprint setting forth these processes, its power lies in the effectiveness of the implementation of the Act, which would require commitment from various stakeholders, including government, civil society, and the public, to ensure its success.

Implementation Committee on Freedom of Information

Several implementation initiatives established by the executive arm of government include the inauguration of an Inter–ministerial Implementation Committee on Freedom of information in 2011 by the Head of the Federal Civil Service of the Federation, which committee developed a broad roadmap and action plan for FOI implementation. Many FOIA Implementation Committees in the government ministries, departments and agencies were set up in keeping with the January 31, 2012 memo of the OHCSF. The Attorney General of the Federation (AGF), fulfilling his mandate under the Act has also launched a website–www.foia.justice.gov.ng–for accessing compliance information submitted by public institutions.

The National Assembly, also in keeping with the Act, established the House of Representatives’ Committee on Reform of Government Institutions, also known as the FOI Committee, charged with the responsibility of overseeing FOI compliance by institutions of government in line with the Act. This committee holds regular interactive sessions and undertakes periodic visits to the various government ministries, departments and agencies (MDA) to ascertain compliance level and to further encourage the establishment of systems and structures for effective implementation of the law. These initiatives have impacted the progress of compliance.

Civil Society leads dissemination processes

Civil society has also contributed immensely to the efforts to ensure the implementation of the FOIA in Nigeria. With interventions geared at sensitization, and capacity building of both the supply and demand ends of the FOI chain, organizations like the Right to Know[5] and Media Rights Agenda[6] over the past three years have engaged in advocacy with stakeholders, provided training and sensitization for public bodies, civil society, the media, community based organizations and the general public.

These organizations have produced copies of the FOIA to combat the proliferation of erroneous copies that largely misinform and mislead an unsuspecting and thus vulnerable public. Other initiatives include translation of the Act into several indigenous languages towards wide–reaching sensitization; provision of technical support to various public institutions in the FOI implementation process and an ongoing project with the federal public training institutes to develop a FOI training curriculum for Ministries, Departments and Agencies (MDAs) of government.

Civil society organizations and a few individuals have also been at the forefront of making information requests, as well as contesting the denial of requests through litigation. It should be noted that while most of these cases have been centred on requests for information, every provision of the Act is actionable.

Enforcement and role of the Judiciary

A sampling of the FOI requests however reveals that a major focus of the demands has been on the fiscal behavior of government, public officers and public institutions generally. There have been varied reactions by public institutions to requests for information that range from outright refusals with no reason given to delays in granting requests. These unsubstantiated refusals have led to the institution of legal proceedings to compel such public institutions to grant requests for access to information. Mechanisms for redress include the courts, the National Human Rights Commission, and the Public Complaints Commission. However, to a large extent, recourse has been to the courts. While judicial and institutional record with respect to defending the right of access to information has been mixed at best, progressively, and especially following recent sensitization of the bench, more cases are been ruled in favor of disclosure of information.

Notable victories include orders compelling disclosure details of the emoluments and allowances of members of the National Assembly[7], and of senior personnel of the Central Bank of Nigeria[8] and information concerning certain procurements and contracts by the Power Holding Company of Nigeria (PHCN)[9], a public utilities monopoly, to mention but a few. Conversely, there have also been judicial orders denying access.

Proactive Openness initiatives

Proactive disclosure is to be prompt and periodical, as well as widely disseminated through diverse media, including electronically, in print, hard copy and online. Using online disclosure as an indicator for measuring the level of compliance, proactive disclosure falls far below the statutorily required standard. Many public institutions have very interactive websites, but these sites do not contain information beyond the most basic classes, mostly confined to the institutional organogram and mandate. They exclude more ‘sensitive’ disclosures.

While, there has been a progressive increase over the years in the compliance with the annual reporting obligation by public institutions to the AGF, the increase is more quantitative than qualitative, and compliance is chequered, at best, as it remains more in form than substance.

Eagerness about the FOIA at the state level under Nigeria’s Federal system of government has been mixed and the practice at that level has been less than uniform. However, the argument of applicability of the FOI Act at state level has been settled. Applying the doctrine of covering the field, as well as citing also the powers of the National Assembly to legislate on the subject matter, various State High Courts have all ruled that the FOI Act is a statute of general application, and binding at all levels of government, and is meant to enthrone transparency and accountability in governance across Nigeria. A few states have also passed state-level FOI legislation of varying quality. Soon after the passage of the Federal FOI Act in May 2011, the Ekiti State Freedom of Information Law (ESFOIL) was signed into law on 4 July, 2011. The first of 36 states in Nigeria to adopt a state FOI Legislature. Subsequently, the ESFOIL has gone through a process of amendment in 2013 to improve it, aligning conflict and inconsistent areas with the Federal Legislature. Imo state followed suit and enacted its FOI law in June 2012, while the Kogi state bill is in the process of legislative action.

Conclusion

While strides are being made towards implementation, several challenges remain including, a subsisting opaque security classification system for records, and non-revision of the civil service rules to align them with the FOI Act, as opposed to the now redundant provisions of the Official Secrets Act as they relate to access to information. A pervasive culture of secrecy still persists, with a low level of understanding of FOI among civil servants, and the public. In addition, record-keeping, maintenance and retrieval systems often do not meet with the standards required for an effective FOI regime.

Implementation process has, so far, yielded a mixed bag of results. Though pushed anecdotally by enthusiasts as a window into government to ensure citizens participation in governance, and by the Nigerian government as proof of their commitment to transparency and accountability. The demonstration of commitment to matching the rhetoric with action varied, and thus, how FOI works in practice can often be quite remote from the projected ideal.

Recommendations

  1. Considering that the Federal Republic of Nigeria adopted the National Freedom of Information law, it is urgent that it makes efforts to improve the operating environment by changing the character of public services. In this regard we recommend that Nigeria ratifies, domesticates and effectively implements the African Charter on the Values and Principles of Public Service Administration which among others seeks to open governments as opposed to the traditional secretive regimes. In addition, the Government should ratify the African Statistics Charter and actively implement it by making information more available to Nigerians.
  2. Citizens access to budget and audit information is paramount for strengthening democracy and accountability. In this regard, Nigeria should expedite the process of making Government financial information more accessible through proactive disclosures.
  3. Whereas existing efforts are commendable, it is recommended that Government puts in place and strengthens mechanisms and platforms for civic engagement. In this regard, meeting eligibility and joining the Open Government Partnership should be strongly considered.

 


1 http://www.au.int/en/treaties

2 http://www.achpr.org/states/reports-and-concluding-observations/

3 Some other legislations that contain provisions that facilitate access to information include the Environmental Impact Assessment Act, the Fiscal Responsibility Act, the Public Procurement Act, and the Nigeria Extractive Industries Transparency Act, to mention but a few. See www.r2knigeria.org/legislation

4 The right to information is constitutionally guaranteed by 1999 Constitution of the Federal Republic of Nigeria, encapsulated under Section 39; and protected under Article 9 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 09, LFN, 2004.

5 www.r2knigeria.org

6 www.mediarightsagenda.net

7 Suit no. FHC/ABJ/CS/805/2011; Legal Defence & Assistance Project (Gte Ltd) v Clerk of the National Assembly (Ruling). http://r2knigeria.org/index.php?option=com_docman&task=doc_download&gid=79&Itemid=341

8 Suit no. FHC/ABJ/CS/1016/2011; Uzoegwu F. O. C. Esq. v Central Bank of Nigeria and HAGF (Judgement). See judgment at
http://r2knigeria.org/index.php?option=com_docman&task=doc_download&gid=106&Itemid=341

9 Suit no. FCH/ABJ/CS/582/2012; Public and Private Development Centre Ltd/Gt v Power Holding Company of Nigeria (PHCN) PLC and HAGF. See judgment at http://r2knigeria.org/index.php?option=com_docman&task=doc_download&gid=108&Itemid=341

 

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