Re-Visiting the Freedom of Information Bill: Need for Access to Information in Nigeria

RE-VISITING THE FREEDOM OF INFORMATION BILL: NEED FOR ACCESS TO INFORMATION IN NIGERIA

BY

ONDOTIMI SONGI*

BACKGROUND

This paper comes in the wake of the 2010 World Press Freedom Day marked by the world including Nigeria on 3 May, 2010. One aspect of press freedom that is of interest to me having regard to its importance in building the Nigerian nation is the need for freedom of information (FOI) or access to information held by public officials. It is now a cliché to say that there is a culture or veil of secrecy among public office holders in Nigeria. This will be buttressed with an ongoing brouhaha in the Nigerian polity. In November 23, 2009 President Yar’Adua collapsed and was rushed to a Jeddah hospital in Saudi Arabia, and for the first time his medical condition of acute percarditis was officially disclosed to Nigerians. But since then, it has been a hide-and-seek game between Nigerians and the “cabal” as to his true state of health, and possibly whereabouts. This has resulted to the thrive of rumour mongering as even the Acting President recently declared in a CNN interview that he has not seen Mr. President. Thank God for the ever vibrant civil society and “ingenuity” of the National Assembly, Nigeria escaped another major set back in its democratisation process. Bottom line is that the last of Mr. President’s absentee state is yet to be heard or seen and it is partly attributable to the absence of an FOI legal regime in Nigeria that allows Nigerians to be treated with so much contempt and disregard by those in public offices with a flagrant infringement of their right of access to information. No doubt, there are adverse implications because information cannot be suppressed without dire consequences for social cohesion and stability.

Ironically, the Freedom of Information Bill that will provide a remedy has been missing in action in the National Assembly. It is, therefore, intended in this paper to examine the right to FOI in order to highlight its importance and need to Nigeria’s growth and development.

RIGHT TO FREEDOM OF INFORMATION

In its very first session in 1946, the UN General Assembly adopted Resolution 59(I) stating that: “Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated.” The right to freedom of information is a component of the right to freedom of expression enshrined in the basic laws and constitutions of virtually all of today’s States. In Nigeria, the right to freedom of expression is enshrined under Section 39 of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 to the effect that every person shall be entitled to freedom of expression, including freedom to hold opinions and “to receive” and impart ideas and information without interference. However, under Section 45 of CFRN 1999, this right may be limited or derogated from by any law that is “reasonably justifiable in a democratic society” in the interest of defence, public safety, public order, public morality, or public health; or for the purpose of protecting the rights and freedom of other persons.

In international jurisprudence, the international community has in various human rights treaties upheld and guaranteed the right to FOI together with its protection under customary international law. Article 19 of both the Universal Declaration of Human Rights (UDHR) 1948 and the International Covenant on Civil and Political Rights (ICCPR) 1966 contain similar statements of the right to freedom of expression, though the latter is very elaborate in its provisions. Article 19(2) of the ICCPR specifically stipulates that: “Everyone shall have the right to freedom of expression; ‘this right shall include freedom to seek, receive and impart’ information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. (Italics supplied for emphasis). Regionally, Article 9 of the African Charter on Human and Peoples' Rights 1981 provides for freedom of expression and access to information. Nigeria is a party to the ICCPR which she ratified on 29 July 1993, and has ratified and domesticated the African Charter on Human and Peoples’ Rights.

This recognition is reflected in the explosive growth in the number of access to information laws that have been adopted around the world. Numerous countries in the world, including Costa Rica, Guatemala, India, Malawi, United States, Australia, Canada, New Zealand, Norway, Denmark, Holland, Sweden, South Africa, etc. have constitutional guarantees of access to government-held information, and have gone ahead to make explicit legislative provisions on freedom of information.
Judicially, national courts in a number of countries, particularly in Asia, have held that access to information held by public authorities is a fundamental human right. In the Indian case of S.P. Gupta v. President of India and Ors [XIII] the Indian Supreme Court held that, “The concept of an open Government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression …. Disclosure of information in regard to the functioning of government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands”.
Thus freedom of information extends to right of obtaining and reading newspapers, listening to broadcasts, surfing the Internet, participating in public debates as a listener, and undertaking journalistic or academic research. It also includes the right to access records held by public authorities. Governments must publish important information and respond to requests from individuals to access their records. In some jurisdictions it may mean not only allowing access to government documents in whatever form they happen to exist, but also opening up the meetings of governments, their advisory bodies and client groups to public scrutiny.

NEED FOR FREEDOM OF INFORMATION
Just like freedom of expression simpliciter is very crucial to promoting democracy among other things, so is right to freedom of information or access to information very vital. ARTICLE 19: Global Campaign for Free Expression, and Media Rights Agenda, two renowned non-governmental organisations advocating for freedom of expression notes that freedom of information is a fundamental underpinning of democracy. Democracy cannot flourish if governments operate in secrecy, no matter how much open discussion and debate is allowed. Indeed, the very nature and quality of public discussion would be significantly impoverished without the nourishment of information from public authorities. A democracy's health and longevity depends upon public trust and confidence in government and this is nourished by open access to information. A government is responsible to individuals and communities, which in turn have a right to know what the government is doing on their behalf. Openness and transparency help to improve government decisions, encouraging rational policy choices and enhancing the political process. Democracy is also about accountability and good governance. The public has a right to scrutinise the actions of its leaders and to engage in full and open debate about those actions. It must be able to assess the performance of the government and this depends on access to information about the state of the economy, social systems and other matters of public concern. One of the most effective ways of addressing poor governance, particularly over time, is through open, informed debate. Thus, to guarantee freedom of expression without including freedom of information would be a formal exercise, denying both effective expression in practice and a key goal which free expression seeks to serve.
Access to information also serves many social goods such as helping in combating corruption and wrongdoing with the help of investigative journalists and watchdog NGOs. Access to medical records, for example, can help individuals make decisions about treatment, financial planning and so on. Interestingly is the fact that access to information can help facilitate effective business practices as public bodies hold a vast amount of information of all kinds, much of which relates to economic matters and which can be very useful for enterprises. In other words, access to information is central to the right to development as freedom will be bereft of all effectiveness if the people have no access to information.
Interestingly, the International Press Centre maintains that even the government will benefit from a law permitting access to information. For instance, the executive will need it where the legislature is not forthcoming with information on some of its activities, the legislature will need it in the exercise of its oversight functions on the executive and the judiciary will need it in gathering all evidence in deciding important cases involving the other arms of government. This should dispel the impression that FOI is for the benefit of the Press.
It is important to note that underlying the whole principle of access to information is the recognition that governments hold information not for themselves but, rather, on behalf of the public and that, as a result, public bodies should provide access to that information. In other words, access to information laws reflects the fundamental premise that government is supposed to serve the people.

THE FREEDOM OF INFORMATION BILL
The FOI Bill 2007 in its explanatory note states that it seeks to provide a right of access to public information or records kept by government, public institution or private bodies carrying out public functions for Nigerians, and establish procedures for the achievement of those purposes; and for related matters. It also seeks to increase the availability of public records and information to citizens of the country in order to participate more effectively in the making and administration of laws and policies and to promote accountability of public officers. It seeks to do achieve this 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 authorization and establish procedures for the achievement of those purposes; and for related matters.
A close examination of the FOI Bill reveals that it meets international standard to a large extent with regards to principles on access to information legislation. The Bill promotes maximum disclosure of information to individuals. It provides protection for any public officer who discovers the perpetration of a fraudulent act and reveals it, thereby discouraging corruptions by the public officers.
With regards to time limits within which decisions must be made on access requests, the Nigerian FOI Bill provides for an initial time limit of seven days, which may be extended for another seven days. It is, however, my view that this may not be realistic within the Nigerian context as these time limits are shorter than is commonly the case in other jurisdictions, such as South Africa where Section 25 of South African Promotion of Access to Information Act 2000 sets the initial time limit at 30 days; and under Section 26 of the same Act this may be extended for a further thirty days for a number of reasons.
In line with the principles on access to information legislation, the Nigerian FOI Bill applies to all arms of government - the Executive, Legislature and Judiciary as well as to all tiers of governments namely federal, state and local governments. However, it subjects the requirement of disclosure to specific exemptions which these bodies may be in a position to take advantage of, for example relating to law enforcement investigations, defense matters, the conduct of international affairs, trade secrets, technical and scientific information of economic value, personal information, third party information, information covered by solicitor/client privilege, examinations texts, questions etc.
Nevertheless, there is an overriding public interest disclosure but apparently only by courts of law. It is submitted that the public interest provisions in the Nigerian FOI Bill be made applicable to all exemptions and that it be clear that this test is to be applied at all stages of consideration of an application, including by the relevant public authority.
From the foregoing, it appears the Nigerian FOI Bill establishes an excellent FOI regime providing for judicial review in a situation where access to information is refused. However, the Nigerian FOI Bill does not provide for an independent administrative body to promote compliance with its provisions and to provide an accessible form of appeal against refusals to disclose information by public authorities. Instead, it provides simply for judicial review of decisions by the courts. This is the most significant failing of this draft legislation. It is submitted that provisions regarding an independent administrative body be included in the Nigerian Bill. This body which may be the Public Complaints Commission (Ombudsman) should play a number of key roles including educating public officials regarding the FOI legislation, exposing and highlighting serious failures by public authorities to implement the spirit as well as the letter of the law and reviewing decisions by public authorities regarding individual access requests. In relation to the latter, the administrative body (Ombudsman) should have the power to compel production of any document or record, to order the public authority to disclose the record, to reduce any fees charged and to take appropriate steps to remedy any unjustifiable delays.

CONCLUSION
It is my view that the suppression of information concerning Mr. President’s current state of health and or whereabouts resulted in grave implications on national security and did put a serious and further dent on the already tainted Nigeria’s international image. The serious crack in the post amnesty programme for ex-militants in the Niger Delta readily comes to mind when it is recalled that in the heat of the brouhaha, the Movement for the Emancipation of the Niger Delta (MEND) had declared that: “a situation where the future of the Niger Delta is tied to the health and well-being of one man is unacceptable”, and subsequently attacked oil installations. Therefore, it is very sad and regrettable that a Bill first introduced into the House of Representatives (lower House) since 1999 (eleven years ago) as private member’s Bill and published in the Federal Government’s Official Gazette, No. 91, Volume 86 of 8th December 1999 as Government Notice No. 200 is still hanging and earning for itself the infamous phrase of “longest standing Bill in Nigeria’s National Assembly”. Surprisingly, much is not known by the Public on the current position of the Bill in the National Assembly as opinions differ just as there are about two versions of the Bill. However, activists believe that the Bill is still two vital stages – harmonisation and presidential assent away from the status of a law. The House of Representatives passed the FOI Bill in August 2004 and it was transferred to the Senate where it remained for over two years. In November 2006, the Nigerian Senate also passed the Bill by a consensus vote. A quick view of the two versions passed by the National Assembly suggests minor differences. Activists are continuing to bolster public support for the Bill by increasing public awareness and fine tuning their engagement with the legislative process. The enactment of this historic FOI Bill would encourage transparency and accountability in governance and strengthen Nigeria’s democracy.

RECOMMENDATIONS
If the above position is correct, it is our recommendation that there should be a speedy harmonization of positions by the Joint Committee of the National Assembly for onward transmission to the President for assent that is legally required within 30 days for a bill to become a law. That in harmonizing the Bill, the Joint Committee of the National Assembly should provide for an ombudsman (using the existing Public Complaints Commission) an independent administrative body to promote and monitor compliance with its provisions and to provide an accessible form of appeal against refusals to disclose information by public authorities before a court option as last resort. Furthermore, in harmonizing the Bill, the Joint Committee of the National Assembly should extend the time limits within which decisions must be made on access requests to thirty (30) days as this appears realistic and is the practice in other jurisdictions such as South Africa.
There is also the need to promote public understanding of the Bill. Importantly, in publicizing the Bill, members of the public should be made to understand that they can utilize or take advantage of the prerogative orders, such as the order of mandamus, to enforce their right of access to information where it is denied. The FOI enlightenment campaign should not be limited alone to the general public but should extend to all arms of government as they are important stakeholders in ensuring that the FOI Bill is not only passed but enforced.
Finally, that in its recent mandate and move to amend the 1999 Constitution, the National Assembly should support the incorporation of the full wording of Article 19 of the ICCPR into the new Constitution as this will expressly allow for right of access to information in Nigeria. This should be followed by a repeal/amendment of all laws restricting access to information or that promotes a culture of secrecy by public officials, such as the Official Secrets Act (1962), the Defamatory and Offensive Publication Act (1966), Printing Press Regulations Act (1964), Section 58 of the Criminal Code Act of 1958, which altogether enforce a regime of secrecy.

* Ondotimi Songi, a lawyer and Research Assistant, Center for African Legal Studies writes from Port Harcourt