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Part One
Background
Origins of
the Freedom of Information Campaign
The idea
of a Freedom of Information law for Nigeria was conceived in
1993 by three different organisations, working independently
of each other. The organisations, Media Rights Agenda (MRA),
Civil Liberties Organisation (CLO) and the Nigeria Union of
Journalists (NUJ), subsequently agreed to work together on a
campaign for the enactment of a Freedom of Information Act.
The
objective of the campaign was to lay down as a legal
principle the right of access to documents and information
in the custody of the government or its officials and
agencies as a necessary corollary to the guarantee of
freedom of expression. It was also aimed at creating
mechanisms for the effective exercise of this right.
The
consultations among the initial partner organisations were
geared, among other things, towards determining the various
interest groups likely to be affected by the legislation;
those who should have a right or standing to request
information under a freedom of information regime and under
what circumstances information may be denied those seeking
them; what departments or organs of government would be
responsible for releasing information and documents to those
seeking them; and determining the agencies and arms of
government to which the legislation would extend.
Media
Rights Agenda was designated the technical partner in the
project under the arrangement agreed upon for taking the
project forward. In keeping with this role, it was asked to
produce a draft Freedom of Information Law.
Following extensive research, MRA’s Legal Directorate headed
by Mr. Tunde Fagbohunlu of the law firm of Aluko and Oyebode,
produced in 1994 a draft bill entitled “Draft Access to
Public Records and Official Information Act”. The content of
the draft drew substantially from the experiences of other
countries operating freedom of information laws. But it was
also based on consultations among the three organisations
and suggestions made by practising Nigerian journalists in
the questionnaires administered by Media Rights Agenda.
Consultative Process in Finalising the Freedom of
Information Bill
The
“Draft Access to Public Records and Information Act”
produced by Media Rights Agenda in 1994 became the basis for
further discussions and debates on the issue and was
subsequently subjected to a series of review exercises
involving various stakeholders.
The
first of such exercises was a two-day technical workshop
jointly organised by the three partner organisations on
March 10 and 11, 1995 to examine and revise the draft,
taking into consideration the views of other interest
groups, which might use the proposed legislation.
Participants in the workshop included human rights workers,
journalists, lawyers, university lecturers and
representatives of the National Broadcasting Commission and
the Federal Ministry of Information.
Chaired
by eminent journalist and Nigeria’s former Information
Minister, Prince Tony Momoh, who is also a lawyer, the main
objective of the workshop was to achieve a consensus among
the various interest groups that are affected by the
availability or otherwise of a legally protected right of
access to government held information, on the need for a
Freedom of Information Act in Nigeria and the content of
such a law.
There
was a common understanding among the various interest groups
represented at the workshop that the legal regime governing
access to government held information in Nigeria must
undergo a structural transformation. Their conclusion was
that since statutes which permit access to official
information in Nigeria were few, the overall effect is that
a culture of secrecy prevails in all government
institutions, nurtured and given legal effect to by such
laws as the Official Secrets Act and some provisions in the
Criminal Code which make it an offence to disclose certain
types of government held information.
The
general consensus at the workshop was that this existing
legal regime should be replaced with one in which there is a
general right of access to government held information,
unless such a right is specifically removed by statute in
certain circumstances and to protect specific, statutorily
recognised interests.
At the
end of the workshop, the participants issued a 13-point
Communiqué, inter alia, as follows:
Participants representing diverse interest groups, including
the press, academia, government institutions,
non-governmental organizations, the legal profession,
unions, etc., met for two days, March 10th and 11th
1995, at the Nigerian Institute of Advanced Legal Studies,
Lagos under the auspices of the Civil Liberties Organisation
(CLO), the Media Rights Agenda (MRA) and the Nigerian Union
of Journalists (NUJ) at a technical conference on the
Freedom of Information Act to consider the first draft of a
proposed legislation on Access to Public Records and
Information. At the end of the conference, the participants
agreed and resolved as follows:
1. That every person whether a citizen of Nigeria or
not, should have a legally enforceable right to be given, on
request, access to any record under the control of any
government or public institution.
2. That the Access to Public Records and Information
Bill should be enacted into law to give effect to Section 36
of the 1979 Constitution of the Federal Republic of Nigeria,
which guarantees every person the right to hold opinions and
to receive and impart ideas and information without
interference.
3. That Executive, legislative and judicial organs
and institutions should be subject to freedom of information
legislation.
4. That through a freedom of information culture
which will engender openness, transparency and
accountability in government, Nigerians can overcome the
vicious circle of corruption, underdevelopment and political
instability.
5. That all laws inconsistent with the realization
of the ideal of free flow of information such as the
Official Secrets Act, the Sedition law, the National
Broadcasting Commission Decree, the Newspapers Decree, etc.
should be reviewed.
6. The Draft of the Access to Public Records and
Information Bill adopted by participants at the Conference
should be enacted into law without delay.
7. That a Monitoring and Campaigns Committee (MCC),
comprising the Civil Liberties Organisation, Media Rights
Agenda and the Nigeria Union of Journalists be set up to,
among other things:
i)
Circulate the Access to Public Records and Information Bill
and the Conference Report to all interest groups which
should be involved in the advocacy for the enactment of the
legislation and particularly: the Nigerian Bar Association
(NBA); human rights organisations and other non-governmental
organisations; environmental protection organisations;
minority rights groups; professional bodies and
associations; consumer rights protection groups; the
business community; the academic community; the Nigerian
Press Organisation (NPO); the Nigerian Institute of Public
Relations; and the Newspapers Proprietors Association of
Nigeria (NPAN);
ii) Urge the Nigerian Bar Association to put the
Access to Public Records and Information issues on its
agenda at all levels;
iii) Urge the Nigeria Union of Journalists to put
the Access to Public Records and Information issue on its
agenda at all levels;
iv) Formally contact the Nigerian Press Council with
a view to securing its support and assistance in ensuring
the enactment of the legislation;
v) Send the Draft Bill to the Federal Ministry of
Information and the Federal Ministry of Justice with a view
to having the Bill enacted into law; and
vi) Generally raise public awareness on the Access to
Public Records and Information issue.
8. That the right to receive and impart information
and ideas is a fundamental constituent of the right to
freedom of expression and as such Nigerians should imbibe
the culture of protesting any time they are deprived of
information through the closure or proscription of media
institutions.
9. That the duty to be fair and just is a corollary
to a right of access to public records and information.
In
accordance with the agreement reached at the workshop, Media
Rights Agenda produced a revised second draft of the
proposed legislation later that year to reflect the
consensus of the participants and stakeholders regarding the
contents of the proposed law. But the sponsoring
organisations, the CLO, MRA and NUJ, however, continued to
invite views and comments from stakeholders and other
concerned parties within and outside Nigeria.
A
Campaigns and Monitoring Committee was established in
accordance with the resolutions of the workshop to carry out
follow-up actions on the campaign for the enactment of the
revised draft into law. However, although getting
constitutional backing for the legislation was of crucial
importance, and the National Constitutional Conference set
up by the regime of the late Head of State, General Sani
Abacha, was then still in session, it was agreed by the
participating groups that it would be inappropriate to lobby
the Conference to provide constitutional support for the
draft law. The rationale was that having rejected the
Conference as lacking in credibility, a civil society
advocacy directed at it would confer legitimacy on it and
its work. Therefore, the draft was never submitted to the
Conference. But it was sent to the Minister for Information,
and the Attorney-General of the Federation and Minister of
Justice.
Members
of the committee also met with the then Attorney-General of
the Federation and Minister of Justice, Dr. Olu Onagoruwa,
to secure his support for the enactment of the draft into
law. Although he was in principle supportive of the idea,
it was clear that he lacked the political influence within
the Abacha regime to push the draft through.
The
political situation in Nigeria deteriorated shortly
afterwards as the Abacha regime became more repressive and
brutal and the law was never passed.
Following the death of General Abacha in June 1998, the
regime of Major-General Abdulsalami Abubakar which took over
political authority in the country immediately embarked on a
transition to civil rule programme under which elections
were held into various levels of government between December
1998 and February 1999.
This
development created the necessary political climate to
revisit the issue. Another opportunity to review the draft
law and its content came up in March 1999 when Media Rights
Agenda, working with ARTICLE 19, the International Centre
Against Censorship[1],
in London; and the Nigerian National Human Rights
Commission, organized a Workshop on Media Law Reform in
Nigeria at Ota in Ogun State. Held between March 16 and 18,
1999, the workshop was attended by 61 representatives of the
media, both independent and state controlled; regulatory
bodies; the legal profession; international institutions;
local and international non-governmental organizations; and
other interest groups.
Participants at the workshop included the United Nations
Special Rapporteur on Freedom of Opinion and Expression, Dr.
Abid Hussain; a member of the European Parliament, Mrs.
Glenys Kinnock; Judge John Oliver Manyarara, Chairman of the
Board of Trustees of the Media Institute of Southern Africa
(MISA); Justice Paul Kedi Nwokedi (rtd), the then Chairman
of the Nigerian Human Rights Commission; Professor Auwalu
Hamisu Yadudu, then Special Adviser to the Head of State on
Legal Matters; Prince Tony Momoh, a former Minister of
Information; then Senator-elect, Tokunbo Afikuyomi; Ms
Bettina Peters, Deputy General Secretary of the
International Federation of Journalists (IFJ) in Belgium; Mr
Kabral Blay-Amihere, then President of the West African
Journalists Association (WAJA); Ms Jeanne Seck of the United
Nations Scientific and Cultural Organisation (UNESCO) in
Paris, Ms Brigid O’Connor, Regional Information Coordinator
for West Africa at the British Council; and Mr Olisa
Agbakoba (SAN).
A
substantial part of the workshop was devoted to discussion
of the draft Freedom of Information law, which was further
reviewed. In The Ota Platform of Action on Media Law
Reform in Nigeria, a consensus document which emerged at
the end of that workshop, further recommendations were made
on the content of the draft law. The recommendations
include the following:
a.
In addition to a constitutional guarantee of the
right of access to public information, a Freedom of
Information Act should be enacted at the earliest possible
opportunity, reflecting the principle of maximum disclosure.
b.
The Draft Access to Public Records and Official
Information Bill published by Media Rights Agenda, the Civil
Liberties Organisation, and the Nigeria Union of Journalists
should be taken as the basis for discussion on this issue,
but its provisions require further review.
c.
All legislation, which unduly inhibit or restrict the
right of Freedom of Information, such as the Official
Secrets Act, should be amended to reflect the principles of
the Freedom of Information Act.
d.
The cost of obtaining public information should be
affordable to the majority of citizens.
e.
The proposed Act should contain a provision, which
stipulates that, the individual requesting the
information need not demonstrate any specific interest in
the information requested.
f.
Doctoring of public records before they are released
to the person, entity or community requesting for them
and obstruction of access to public records should be made a
criminal offence.
g.
In the application of any exemption, there should be
a presumption of access to public information in the
proposed Act. Exemptions should be narrowly drawn and
subject to a test of actual harm.
Following these recommendation, Media Rights Agenda revised
the draft access to information law once again to give
effect to the agreements reached at the workshop.
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