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Freedom of information, also known as access to information refers to a citizen’s right to access information that is held by Institutions of the State.
There is currently a liberalisation protocol in place in Nigeria that provides for free access to information enabled by legislation. The Freedom of information Act, 2011 ,a Federal Legislation is an important legislation that guarantees of freedom access to Information by Citizens of State. An interesting vista is the legislation is the obliteration of the iron bar against justice in Public Interest Litigations as the law provides that a person who seeks information under the Act need not give a reason for asking for the Information.
The right to Right to Freedom of Expression is a fundamental human right enshrined in Section 39 (1) of the Constitution of the Federal Republic of Nigeria,1999 ( As Amended) which provides 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.
Similarly, Article 19 of the Universal Declarations of Human Rights provides that: ‘Everyone has the right to freedom of opinion and expression: this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 9 of the African Charter on Human and Peoples Rights, provides that ‘every individual shall have the right to receive information; every individual shall have the right to express opinions within the Law. The African Commission on Human and People’s Rights adopted a Declaration of Principles on Freedom of Expression in Africa, stating: ‘Public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information, subject only to clearly defined rules established by law.
Although the declaration establishes the right of everyone to access information held by Public Institutions, it is apparent from the above text that the right only exists subject to clearly defined rules established by law. Again the Freedom of Information, it does appears applies to only Federal Institutions of Stat, though there are conflicting decisions
This reinforces the necessity for the adoption of Freedom of Information Laws at the state level, which contain such clearly defined rules. While this right is a component of the broader freedom of expression as guaranteed in the constitution and the international instruments, it is not simply the converse of the former, but a separate freedom of its own. An individual is only able to enjoy the right to information when they are free to access relevant information held by Institutions of State.
As such access to information is the practical implementation of the right to information. A number of paradigmatic changes sweeping the globe have undoubtedly contributed to growing acceptance of the right to information. These include the transitions to democracy, albeit more or less successful, that have occurred in several regions of the world since 1990.
They also undoubtedly include massive progress in information technology which have changed the whole way societies relate to and use information and which have, broadly, made the right to information more important to Citizens. Among other things, information technology has generally enhanced the ability of ordinary members of the public to control corruption, to hold leaders to account, and to feed into decision-making processes. This, in turn or to be more precise, in parallel has led to greater demands for the right to information to be respected.
The International NGO, Article 19, Global Campaign for Free Expression described information as ‘the oxygen of democracy. Information is an essential underpinning of democracy at every level. At its most general, democracy is about the ability of individuals to participate effectively in decision making that affects them. Democratic Societies have a wide range of participatory mechanisms, ranging from regular elections, to citizen oversight bodies for example, of public education and health services, to mechanisms for commenting on draft policies, laws or development programs.
Effective participation at all these levels depends on fairly obvious ways, on access to information including information held by public bodies.
Public access to government held information allows individuals to better understand the role of government and the decisions being made on their behalf. With an informed citizenry, Governments can be held accountable for their policies, and Citizens can more effectively choose their representatives.
Knowledge is power and transparency is the remedy to the darkness under which corruption and impunity thrives. Democracy depends on knowledgeable Citizenry ,whose access to a broad range of information enables them to participate fully in public life, help determine priorities for public spending receive equal access to justice and hold their public officials accountable.
28th of May ,2011 is a day that would go down in history as significant in the battle to enthrone accountability in Nigeria’s Public Life. It was on that day that then President Goodluck Ebele Jonathan signed the Freedom of Information Act (FOIA or Act) into Law.
The FOIA was hailed as the death-blow to corruption and lack of transparency in governance. The FOIA is a Legislation that guarantees the right to information within the control of Public Institutions to all Nigerians, regardless of age, class, or occupation. It effectively gives the ‘right to know’ to every Nigerian c itizen.
Section 1 of the FOIA empowers a person to request information from a government institution whether he has a reason for requesting such information or not provided such information is not one excluded under the Act for national interest or national security.
This right is enforceable in Court if the requested information is not provided within 7 days of making the request.
The Act also makes it compulsory for Public Institutions to keep records of their activities. This is meant to enable public access to these records, thus encouraging transparency.
Though laudable, this Act does not apply to State-owned Public Institutions by virtue of the principle of federalism.
Consequently, the FOIA has to be adopted by each state legislature for it to apply at the state level. Presently, only Ekiti and Lagos have done this.Edo State has set up a frame work in place to adopt same .
Undoubtedly this Act is a viable weapon in the hands of the media and civil society groups. They can take advantage of it, to access any information they require in the course of ‘over-sighting’ government.
Sadly, 4 years down the line, the FOIA has been grossly under-utilized. Apart from the fact that many Nigerians are not aware of the existence of the FOIA and their Rights under it, the Nigerian press and civil society groups seem to care less about the existence of an Act that should be a veritable tool for investigative journalism.
The Nigerian Press is far from being the fourth estate of the realm. Most Nigerian journalists have rather embraced the practice of ‘feeding-bottle-journalism’ where they are fed with stories, quotes, and gossips. There is little or no culture of investigative journalism for which the FOIA is a weapon in more advanced climes.
Civil Society Organisations in Nigeria are no better. They are highly reactionary, responding to issues instead of setting the Agenda by engaging government through proper oversight of its activities. With so many issues plaguing the country, one would have thought that civil society groups would inundate government institutions with an avalanche of requests for information, but the reverse has turned out to be the case
Section 1 and Section 2 (6) of the FOIA establish the freedom of information rights for Nigerians. Every Nigerian has the right to request information in the custody or possession of any public official, agency or institution no matter whether the information is written or not. The applicant for information does not need to demonstrate any specific interest in the information being applied for.
Sections 1 (3) and 2 (6) state further that, if refused information, an applicant has the right to institute legal actions to compel the public official, agency or institution to supply the requested information.
Procedure for requesting public information
Sections 3, 4, 5, 6, 8 and 18 specify the procedure for applying for information from a public agency or institution. Section 3 (2) states that even if a piece of information is not available but can be produced from a machine normally used by the institution, it is deemed to be information under the institution’s control.
Illiterate or disabled persons can make applications by employing a third party. According to Section 2 (4), an authorized public official of the institution to whom application is made shall reduce the application to writing and provide the applicant with a copy. Section 4 states that when an application is made for information, the institution to which application is made has seven days to make the information available. If, however, the institution decides that the information should be denied.
When access to information is refused.
Section 7 of the Act states that where access to information is refused, the public institution refusing the access shall give notice of the refusal in writing. The notice should contain grounds for refusal and cite relevant sections of the Act. The notice is also to state the names and designation, and carry the signature of the official(s) responsible for the denial. Where the case of wrongful denial is established, the defaulting officer(s) or institution is deemed to have committed an offence and is, on conviction, liable to a fine of five hundred thousand naira (N500, 000. 00).
It is a criminal offence to wilfully destroy records or to falsify or doctor them before releasing them to applicants. The offence carries a minimum penalty of one year imprisonment.
Judicial review of refusal.
Sections 20-25 discuss judicial review of denial of access to informationWithin thirty days after a public institution has (or is deemed to have) refused access to information, an applicant may apply to the Court for a review of the matter (Section 20) and the Court shall hear and determine the case summarily (Section 21).In the course of the proceeding, the Court itself may ask for and examine any information to which the Act applies that is under the control of a public institution (Section 22). However, the court should take precaution to avoid the disclosure of any information on the basis of which the public institution will be authorized to disclose the information being applied for (Section 23). The burden of proof that the public institution is authorized to deny access to the particular information sought lies with the public institution. This applies to any proceeding arising from an application (Section 24). The Court shall order a public institution to disclose the information or part of it if the Court finds out that the institution is not authorized to deny access to such information or, even when so authorized, the institution does not have reasonable grounds on which to deny access. The Court shall do the same if it determines that the public interest in disclosing the information is more important and more vital than the interest being served if the application is denied (Section 25).
Freedom of Information, Act 2011.
Historically, the Freedom of information Bill in Nigeria could be traced back to 1993 during the regime of General Sani Abacha. Three organizations- Media Rights Agenda (MDA), Civil Liberties Organisation (CLO) and the Nigerian Union of Journalists (NUJ) started the campaign for the enactment of FOI Act. President Goodluck Jonathan signed the FOI Act into Law on 28th May, 2011.18 FOI Act became a law almost 12 years after it was presented to the Legislature. The Freedom of Information Act contains far reaching provisions capable of transforming the culture of secrecy in governance that has, until now, been existing in Nigeria’s public institutions.
The cardinal purpose for which the FOI Act was passed is to enable the public to access certain government information. The Act aims to make public records and information more freely available, provides for public access to public records and information, protects public records and information to the extent consistent with the public interest and the protection of personal privacy, protects serving public officers from adverse consequences for disclosing certain kinds of official information without authorization and establishes procedures for the achievement of those purposes.
Let us examine some salient provisions of the FOI Act.
Some successes have been recorded since the FOI Act was passed into law in 2011. There has been an encouraging increase in the number of individuals and organizations requesting information pursuant to the provisions of the Act. There have been varied reactions by public institutions to requests for access to information that range from outright and unsubstantiated refusal to delays in granting requests. However most of the cases have been initiated by civil society organizations to demand for information, accountability and good governance in Nigeria.
In General India Garba v. Commissioner of Finance ,Benue State ,the High Court of Benue State presided by Hon Justice S.O. Itodo held that the FOI Act applies to all states of the Federation including Benue State. The Court overruled the objection raised by the Counsel to the Defendant that the FOI Act 2011 was not applicable to Benue state because Benue State had not enacted a law domesticating the Act in the State.
In Public & Private Development Center Ltd./GTE (PPDC) v. Federal Ministry of Finance, the Applicant applied for access to a loan agreement executed between the Federal Republic of Nigeria and the Chinese Exim Bank on the execution and completion of the Abuja light rail Project in the custody of the Federal government. The Federal government denied the request on the grounds that the documents contain the trade secrets of the Chinese Exim Bank which ought not to be disclosed. After perusing the documents, the Court held that the respondents had no justification in denying the Applicants the documents sought under the FOI Act.
In Uzoegwu F.O.C. v Central Bank of Nigeria the Federal High Court ordered the Central Bank of Nigeria to allow the applicant access the emoluments of its senior staff. The Court overrule the objection of the CBN that request such as these would be exempted under the personal information provision of the FOI Act.
It is hoped that the FOIA, which is work in progress, would be domesticated in all states of the Federation to preclude the legal slur of inapplicablity in states .
We also hope that citizens will take advantage of the Law to question the activities of Government and expose shenanigans and improprieties .
Ambassador Egwuelu Isabella Ifeyinwa is the President of Law Students Association, Benson Idahosa University. She is also the current President-Elect of AIESEC In Private Universities Benin City. She has engaged in several United Nations Conferences, Community Services as well as Humanitarian works, she is a great entrepreneur, a Goal Getter and a strong believer in Christ
