Nigerian Judge Says FOI Law Not Applicable to States

12 November 2014

Nigerian Federal High Court Justice Okon Abang on Oct. 31 ruled that the 36 states of the federation are not subject to the national Freedom of Information Act.

The judge ruled the FOI Act is only binding on the federal government and its agencies, rejecting a suit by The Legal Defence and Assistance Project (LEDAP), against some states of the federation, according to articles in The Daily Times, This Day and The Daily Post.

His ruling contradicts a 2013 judgment of an Oyo state High Court that the application of the FoI Act was for the entire federation, therefore, “does not need to be domesticated by any state before taking effect in all states across the federation.” (See previous report.)

By contrast, Judge Abang ruled the FoI Act was neither a residual law, nor was it on the concurrent list of the 1999 Constitution (as amended), the judge ruled that if it was the intention that the FoI Act should be binding on states, the houses of assembly of each of the 36 states of the federation should have been carried along in the process of the enactment of the law.

The decision can be appealed.

A This Day editorial says the ruling “raises fundamental issues that can only be resolved by further judicial interpretation.” It states, “Given the importance of the law in guaranteeing the freedom of Nigerian citizens to obtain information from government and its agencies as well as checking monstrous corruption in governance, any impediment in enforcing FOI Act nationwide would negate the essence of the law.”

The newspaper cautioned however, that FOI advocates “should brace up for what may be the final phase of the battle to entrench the FOI Bill nationwide by initiating the passage of the States’ version of the Freedom of Information (FOI) Bill by the Houses of Assembly of the respective states.”

The editorial points out: “So far only three states’ Houses of Assembly, Delta, Ekiti and Lagos have adopted the FOI Bill since its passage. Surprisingly, one of these states, Lagos was among those that had declined to the request to give the information requested by the Legal Defence and Assistance Project on grounds that the Federal Law was not binding on it. Perhaps, the petitioner should re-apply for the information sought, citing the Lagos version of the FOI Bill, if it has not already done so. The States’ Houses of Assembly must act in the public interest by ensuring that the FOI Bill is passed in the 33 states that have not yet done so. Failure to do so may be interpreted to mean that the legislators and governors in these states detest transparency, but relish opacity and corruption in governance which the law is meant to discourage.

Lawyers quoted in a Nigerian Observer article were critical of the ruling.

Dele Adesina, a former Secretary General of the Nigerian Bar Association (NBA), was quoted as saying, “The Federal Government, I believe, has legislative powers to legislate on any matter in the exclusive legislative list and even the concurrent list, and information generally is on the concurrent list.”

“I hope this judgment will be tested at the appellate court,” he said.

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