Approaching Freedom of Information Regime

By Vincent Obia, Head, Cover and Investigations

Daily Independent, November 26, 2006

Everyone is waiting for the Freedom of Information bill that has been passed by the National Assembly to become law. But what are the challenges before society in the face of such law

The two chambers of the National Assembly are expected to harmonise the Freedom Of Information (FOI) bill soon for President Olusegun Obasanjo to sign into law. Though, it is not known if the president will assent to the bill when it gets to him, almost everyone in Nigeria is optimistic that the bill, when it becomes law, would be a big new boost to the country’s democracy.

For the media and civil society, which initiated the bill, the passing of the FOI bill on November 15 by the Senate is a decision of great moment that gives them hope that democracy is here to stay. It also presents challenges that they must come to terms with.

"Nothing has deepened the content of our democracy like this bill," says former Editorial Board chairman of Champion Newspapers, Jonathan Ishaku. "Though, it did not come out the way we wanted it, actually we have taken a very giant step towards strengthening our democracy."

President of Nigerian Union of Journalists (NUJ), Ndagene Akwu, is quoted as saying, "We welcome the passage of the bill. The bill is a new baby in the family and we cherish it preciously…Everybody should be happy with the passage of the bill because its implementation will benefit journalists and members of the public, including statisticians and politicians."

Maxwell Kadiri, legal officer with the Open Society Justice Initiative, Abuja office, believes, "This is an important step for Nigeria. If and when the bill becomes law, it will encourage transparency and increase public participation in the democratic process."

For former NUJ Lagos State chairman, Mrs. Funke Fadugba, "The passage of the bill is a good development. It is like a woman who has been pregnant for eight years; the day she is delivered is a day of joy. But the most important thing is that this bill will allow Nigerians to have access to information. The bill is not just for Nigerian journalists. It is for all Nigerians. It will curb corruption."

When the president assents to the FOI bill, Nigeria will become the fourth African country with a freedom of information law, after South Africa, Uganda, and Angola.

The FOI bill grants the media and the general public the right to apply for information on government business from government agencies or from private bodies performing public roles.

The bill, according to the Senate’s harmonised version, is "for an act to make public records and information more freely available, provide for public access to public records and information, project public records and information to the extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences for disclosing certain kinds of official information without authorisation and establish procedures for the achievement of those purposes and related purposes thereof."

Section 2(1) of the bill states, "Subject to the provisions of this Act but notwithstanding anything contained in any other act, law, or regulation, every citizen of the Federal Republic of Nigeria, has a legally enforceable right to, and shall, on application be given access to any record under the control of a government or public institution." The bill says such applicant "need not demonstrate specific interest in the information being applied for."

The FOI bill provides in section 5(1), "Where access to record is applied for under this act, the head of the government or public institution to which the application is made shall…not later than 14 working days following the date of receipt of the application: (a) give written notice to the person who made the application as to whether or not access to the record or a part thereof will be given; and (b) if access is to be given, give the person who made the application access to the record or a part thereof."

Many see the passage of the bill as a triumph for civil society.

The road to the final passage of the FOI bill by the National Assembly has been long and tortuous. It started during Obasanjo’s inaugural speech on May 29,199, when he identified corruption as "the greatest single bane of our society today," saying that in his administration, "all rules and regulations designed to help honesty and transparency in dealing with government will be restored and enforced." The president followed shortly after that with an announcement of his plan to present an anti-corruption bill to the National Assembly.

Obviously encouraged by the emerging atmosphere of transparency and accountability, the Media Rights Agenda (MRA), a non-governmental organisation, wrote to the president on June 10, 1999 to commend his anti-corruption stance and remind him that accountability was impossible unless citizens have justiceable right to access to information from public institutions. MRA requested the president to present to the National Assembly his administration’s anti-corruption bill along with a draft FOI bill prepared by civil society organisations as executive bills. The president declined that request in a letter dated July 19,1999, insisting instead that MRA presents the draft FOI bill directly to the National Assembly.

But a member of the House of Representatives, Tony Anyanwu, agreed to sponsor the FOI bill at the Lower House, making it the first private member’s bill and the first civil society-initiated bill to be introduced in the National Assembly in the Fourth Republic.

In time, advocacy for FOI expanded into the formation of a Freedom of Information Coalition, which, among other strategies, tried to make the matter a campaign issue in the programmes of the various political parties.

The FOI bill underwent First and Second Readings in the House of Representatives on February 22,2000 and March 13,2000, respectively. It was referred to the Information Committee of the House on March 27,2000, and the committee submitted its report to the House on July 25,2000. Public hearing on the bill was held at the House of Representatives from October 3 – 4, 2001 to encourage greater public input.

The House of Representatives passed the FOI bill in 2004.

The bill has received now concurrent passage by the Senate, and it is awaiting harmonisation by the Senate and House of Representatives before assent by the president.

Passage of the FOI bill is a good reward for a battle well fought.

But the FOI movement is already thinking beyond the passage. They are stressing the need for the president to act fast and sign the bill and considering the challenges that lie ahead for society in the FOI regime. As a follow-up to the FOI bill, and in addition to safeguards provided in the bill, another bill, the "Whistle Blowers’ Bill," which seeks to protect persons who give out information from public institutions, has been introduced in the National Assembly.

Coordinator of International Press Centre (IPC), Lagos, a member of the FOI coalition, Lanre Arogundade, says, "It will be an anti-climax if the president does not sign this bill."

The FOI bill is as significant as it is challenging to critical sectors of the Nigerian social system. Nigeria has a high illiteracy rate. And even among the elite, there appears to be a terrible reading culture, which translates into a general ignorance culture. According to MRA, despite the fact that the group wrote and sent copies of the FOI bill to each of the 469 members of the National Assembly when it was being initiated in the House of Representatives, to solicit their support, the only reaction the organisation got was a telephone call from Honourable Jerry Ugokwe.

Arogundade believes, "Now that the law is gradually becoming a reality, what it would then mean is that we would have to begin another round of education, training, and enlightenment on actual usage of the bill. But I think it has a very strong potential of being widely used by Nigerians."

The FOI bill’s passage is seen as a triumph and a challenge. For the media in Nigeria, Ishaku says, "Now that we have this freedom of information, I think journalists must rise to the occasion, definitely, after going through the difficulties of the past and live to the expectation of the public to access information that are relevant to them, relevant to the governance of the country, relevant to holding public officers accountable for their actions."

Everyone seems to agree that the FOI imposes greater responsibility on the media, the media owners, and journalists in the country, as more resourcefulness would be expected of them. Former information Tony Momoh believes the media would rise to the challenge. He says, "The media in Nigeria is vibrant and has achieved so much despite the constraints of the environment. The FOI law would only make the media more resourceful."

What about the civil servants who are used to the traditional oath of secrecy of Nigerian public institutions?

Nearly all government information in Nigeria is classified as top secret. The restrictions are reinforced by a plethora of laws, including the Evidence Act, the Public Complaints Commission Act, the Statistics Act, the Criminal Code, etc.

Ishaku says, "The civil servants are a product of old systems which include the colonial government and later on, the military. These are regimes that are not accountable to the people and, therefore, they believe that the people have no input into decision-making and in any case, they don’t even have to know how decisions come about. They claim that they know best what the people want and that they are there to salvage them. They do a kind of voodoo administration in which nobody calls them to order and nobody asks them to account for their actions.

"But in a democracy, all these change and it is good for the civil service to change along with democracy because there is no democracy that is closed, all democracies are open."

Public relations officer, Lagos State Ministry of Information, Shina Odunuga, says, "That means it is now a punishable offence to hoard information. I will want to go beyond that. Basically I don’t believe that offering information should be done by force, if you look at the ethical aspect. Not until we get to that level where you give information not because of the fear that you would be punished but because it is the right thing to do so, we cannot say we have arrived." Odunuga alleges that people "could evade the FOI law like all positive laws. I know civil servants for what they are. They will now reclassify information."

Arogundade believes civil servants would change along the requirements of the expected access to information law. "I do not think this secrecy oath that civil servants swear to would have such a negative effect, except where the government of the day is not willing to cooperate and then they go behind to threaten government officials. Government could use that to intimidate or gag them from making information available. You cannot rule that out, it is not going to be a straightforward thing."

On the various secrecy laws in the country, he says, "The FOI bill, when it becomes law, is going to negate some of these laws. We have, for example, the official secrecy act, but we cannot have freedom of information law and still have official secrecy act. Definitely, as they say, when we get to that bridge, we shall cross it.

"There would be obstacles. We are not unduly optimistic that once this law becomes a reality, it’s just one smooth flow of information. Things don’t work that way. Governments all over the world try as much as possible to check the amount of information that goes out."

About 53 countries in the world are said to have freedom of information law in diverse forms. In Nigeria’s Second Republic, the official secrecy laws were tested by the Tony Momoh – who was then editor of Daily Times – versus Senate case in which a Lagos High Court upheld the right to confidentiality of the source of the journalist. The Court of Appeal, however, overrode this ruling.

Nigeria has been categorised among the most secretive countries. Many believe its tradition of secrecy is what has accentuated white-collar crimes that have given the country the notorious renown as one of the most corrupt countries on earth.

Assistant secretary of Nigerian Labour Congress (NLC), Lagos State branch, Denja Yakub, says, "Democracy is all about transparency, it is all about service to the people. So, it is completely a paradox that in a democracy there will be no such freedom. Nigeria is one of the few countries that would have such an act and we also have a very free press so I think this will encourage the media to find out who our leaders are, who they were, and what they do after office."

Ishaku believes the FOI bill, when signed into law, would improve both the effectiveness and efficiency of the anti-corruption war. He says, "Our way of fighting corruption in this country, historically, probably from 1975, has bordered on witch-hunting. You arrest somebody with no sufficient information, no details of his malpractice is given to the press. It looks like an inquisition rather than a campaign prosecuted on behalf of the society. Because there are no sufficient information given about the case. Sometimes, you have accusations by certain officers, and when the people are discharged, you don’t even see subsequent counter information to clear them of whatever they are alleged to have done." Ishaku thinks the access to information law would change all that.

It would also explode "the main excuse" for the "obvious selective" campaign of the anti-corruption agencies – Economic and Financial Crimes Commission (EFCC) and Independent Corrupt Practices and Other Related Offences Commission (ICPC) – says human rights activist, and lawyer, Bamidele Aturu. "I think with this law becoming reality, information on the maddening corruption in public institutions that have hitherto been concealed under the cloak of official secrecy would begin to reach the public more easily and we can begin to burst EFCC’s excuses for selective justice," he says. "Members of the public can now have access to information they need to petition the anti-corruption bodies about the activities of the thieving public officers."

Former Head of State, General Muhammadu Buhari, also welcomes the FOI bill. A statement released by the former military ruler whose regime was criticised for a notorious anti-media law, Decree 4, under which two prominent journalists, Nduka Irabor and Tunde Thompson, were jailed at the time, said the FOI "will strengthen the social contract between the leaders and the led, a contract which crass corruption has breached."

Buhari called the bill a bedrock of liberal democracy, noting that freedom of information would enhance democracy and consolidate transparency. He believed the bill, when it becomes law, would energise what he termed the vibrant Nigerian media in its mandate of informing and educating the citizenry.

The Freedom of Information Coalition has commenced another round of advocacy to ensure final enactment of the bill into law, according to Osaro Odemwingie of MRA.

Fadugba advises that if Obasanjo refuses to sign the FOI bill, "the National Assembly should not hesitate to override him and give this law to Nigerians as a parting gift."

No one seems to have any grudge against the FOI bill. But many are worried what might be the attitude of the Obasanjo government to the bill. Though, the president has publicly hailed the passage of the bill, many believe his recent political posturing leave little hope for the operation of the FOI. "On the basis of what we have seen so far, I cannot say confidently that this government would make FOI work," says Arogundade.

He feels, "It’s going to be a kind of political battle to make FOI work."

It does seem the battle to make the expected access to information law work, like many laws on the fundamental rights of Nigerians, would be fiercer than the fight to bring it to fruition.