EVOLUTION OF THE NIGERIAN FREEDOM OF INFORMATION ACT, 2011

FoI legislation is not exclusive to Nigeria. The adoption of FoI laws by many countries owes much to the development of press freedom.Footnote ²⁴ Arguably, this process started in the 18th century with Finnish activists who campaigned for freedom of the press. Nevertheless, the earliest example of an FoI law is the Swedish law passed in 1766 (incorporated into the Swedish Constitution in 1974). By the 1960s, it had become fashionable for countries to enact FoI legislation to grant members of the public the right of access to information on official documents held by the state. At this time, democratic governments began to appreciate the need for liberty and the enthronement of a “marketplace of ideas”.Footnote ²⁵ To this end, several countries adopted various forms of FoI laws (or similar legislation).Footnote ²⁶ The USA did so in 1966, South Africa in 2005 and India in 2000.Footnote ²⁷ By 2018, 119 countries had adopted FoI legislation, either as a constitutional provision or an extant domestic law.Footnote ²⁸

At the international level, the drive to secure FoI seemingly began with resolution 59(1) of the UN General Assembly, passed in December 1946.Footnote ²⁹ Nevertheless, the modern concept of FoI could be said to be the brainchild of the 1948 UN Universal Declaration of Human Rights (UNDHR).Footnote ³⁰ Within the African continent, FoI is upheld as an integral part of the right to freedom of expression. This principle can be found in article 9 of the African Charter on Human and Peoples’ Rights and article 4 of the Declaration of Principles on Freedom of Expression in Africa. Eleven African countries have passed national FoI laws: Angola,Footnote ³¹ Ethiopia,Footnote ³² Guinea,Footnote ³³ Liberia,Footnote ³⁴ Niger,Footnote ³⁵ Nigeria,Footnote ³⁶ Rwanda,Footnote ³⁷ Sierra Leone,Footnote ³⁸ South Africa,Footnote ³⁹ UgandaFootnote ⁴⁰ and Zimbabwe.Footnote ⁴¹ There have also been recent regional developments within Africa that encourage the enshrining of FoI principles in member countries. These include: the adoption of the African Platform on Access to Information Declaration of 2011; the adoption of the Model Law on Access to Information for Africa in 2013; and the adoption of the Midrand Declaration on Press Freedom in Africa by the Pan-African Parliament in 2013, which calls on African Union member states to adopt and review access to information laws.Footnote ⁴²

In Nigeria, the first newspaper, Iwe Irohin,Footnote ⁴³ was established in 1859.Footnote ⁴⁴ The British colonial government was not very accommodating and, from the early 1900s, promulgated laws that tried to suppress the growth of local publications.Footnote ⁴⁵ Using these laws, colonial administrators edited almost all information disseminated by the media and provided Nigerians with only that information that they felt was not injurious to His or Her Majesty's government.Footnote ⁴⁶ The situation improved slightly after independence in 1960, as section 24 of the independence constitution guaranteed citizens the legal freedom to express their opinions openly. However, it was also during this period, in 1962, that the OSA became law, restricting access to public records and information.Footnote ⁴⁷ The main reason for enacting the OSA was (and still is) to protect vital government information and ensure that sensitive official information (classified matter), the disclosure of which might be prejudicial to national security (or interest), is not disclosed. Politically, the OSA has its heritage in the colonial era of British rule over Nigeria. Generally, the British used legislation such as the OSA to prevent the disclosure of (classified) information about how His or Her Majesty's officials ruled their territories. Many countries colonized by Britain, of which Nigeria is one, adopted and implemented official secrets legislation after independence, to guide public authorities in their official capacities and prevent the release of information, where disclosure would have a damaging effect on the country.Footnote ⁴⁸

During the first military rule from 1966 to 1979, various decrees were promulgated that impacted negatively on the development of FoI legislation in Nigeria. These included: the Public Officers (Protection against False Accusation) Decree No 11 of 1976; the Newspaper (Prohibition of Circulation, Validation) Decree No 12 of 1978; the Public Officers (Protection against False Accusation) Decree 4 of 1984; and State Security (Detention of Persons) Decrees No 2 and 4 of 1984.Footnote ⁴⁹ Government records were kept in strict confidence and people were seldom informed of the facts that directly affected their lives.Footnote ⁵⁰ However, it was during military rule (specifically around 1993) that the idea of an FoI law was conceived. Three different organizations (Media Rights Agenda, Civil Liberties Organization and the Nigeria Union of Journalists) came together and campaigned for the enactment of an FoI law in the country.Footnote ⁵¹ Nevertheless, due to the autocratic nature of military rule, they could not realize their ambition at this time. With the return to civilian (and democratic) rule in 1999, the Freedom of Information Bill was submitted to Nigeria's fourth National Assembly, but it did not make much progress. It was re-introduced in the legislative chambers of the fifth National Assembly in 2003 and was passed by both chambers in the first quarter of 2007. The bill was, however, vetoed by then President Olusegun Obasanjo.Footnote ⁵² Obasanjo was reluctant to sign the bill because he was afraid that the media would be given too much power to probe the activities of those in government. He perceived the bill as a grand agenda of the “wayward” media to strengthen itself further as a weapon of exposure.Footnote ⁵³

After the inauguration of the sixth National Assembly, the bill was reintroduced and somewhat modified in the upper and lower chambers. Both chambers approved the updated version in May 2011. Goodluck Jonathan received it on 27 May 2011 and signed it into law the following day.Footnote ⁵⁴

RELEVANT PROVISIONS OF THE NIGERIAN FoI ACT

Section 1 of the FoI Act provides:

The application for information under the act can be in either written or oral form, and the applicant does not have to demonstrate or indicate any specific interest in the information applied for. Unlike in the past, an applicant can now initiate public-interest litigation or request public information without the fear of confronting an objection based on locus standi [place of standing]. Ironically, in Paradigm Initiative Nigeria v Dr Reuben Abati,Footnote ⁵⁶ the Federal High Court suggested that the FoI Act was somehow defective because it provides in section 1(2) that an applicant seeking information from a public institution should not be required to demonstrate his or her interest in that information, and called on the National Assembly to amend the law to restrict its application. Extending the locus standi under the act further, section 3(3) allows an illiterate or disabled applicant to request information through a third party. Under section 1(3), an applicant who has been refused information by a public institution, is permitted to institute proceedings in court (the Federal or State High Court) to compel the public institution to release the information sought. By virtue of this section, read together with section 24, the presumption of disclosure is in favour of the applicant, while the burden of justifying the non-disclosure of the requested information lies with the public authority. If a request is to be turned down, the public institution must state the reason for doing so.Footnote ⁵⁷

Section 2(1) of the FoI Act requires a public institution to keep records and ensure that its activities, operations and business are known to the public. This section makes it a statutory requirement that public institutions create, keep, organize and maintain records and information about their set up, structure and operations, in a manner that facilitates public access to that information. Under section 3 of the act, public institutions are mandated to provide a detailed description of their corporate profiles, the programmes and functions of each division, lists of all classes of records under their control, and related manuals used in administering the institution's programmes. They are to provide public access to documents containing final opinions, including: concurring and dissenting opinions; orders made in the adjudication of cases, or covering policies, contracts, receipts or expenditure; and reports and studies conducted by them.

Sections 4, 5 and 6 generally deal with the time permitted for a public institution to grant or refuse an application for information. Under section 4, where information is applied for under the FoI Act, the public institution to which the application is made shall make the information available to the applicant within seven days; in the event that the public institution refuses the application, it must state the reason for refusal and the section of the act under which the denial is made. On this section of the act, a Nigerian non-governmental organization, Right to Know (R2K), states that some public institutions respond to requests, albeit taking many times longer than the statutory seven day limit for responding to requests. For example, R2K reports that its request to the federal Attorney General (AG) for copies of all the annual FoI compliance reports that had been submitted to that office and a copy of the annual report submitted by the AG to the National Assembly pursuant to sections 29(7) and (8) of the FoI Act was responded to and granted, even though it was more than a month before R2K received the response.Footnote ⁵⁸ Some other public institutions have granted either partial or full access to requests for information made by R2K, although not within the statutory period.Footnote ⁵⁹ Section 6 of the FoI Act allows for a extension of time for granting or refusing information, but the extension must not exceed seven days. Section 7 of the act provides that, when a public institution refuses to give access to information applied for, it shall state in a written notice the reasons or grounds for refusing the application. The applicant has the right to challenge the grounds for refusal or to have it reviewed by the court. Under section 7(5), where a case of wrongful denial of access to information is established, the defaulting officer or institution will be liable on conviction (in a criminal charge) to a fine of N500,000. Section 10 also makes it a criminal offence, punishable with a minimum term of one year's imprisonment (with no option of a fine), for any public officer or head of a public institution wilfully to destroy any records kept in his custody or attempt to doctor or otherwise alter any such records before they are released to any person, entity or community applying for them. Section 8 describes the fees to be paid for document duplication and transcription where necessary.

While it is incontrovertible that the fundamental purpose of the FoI Act is to guarantee the right of access to information held by public institutions, it is equally important to note that there are limitations and restrictions to these rights. As a result, the act acknowledges that not all information is for public knowledge. Therefore, public institutions are allowed to deny or refuse any application for access to certain restricted information. Under section 11, a public institution is prevented from disclosing information when disclosure may be injurious to the conduct of international affairs or the defence of the Federal Republic of Nigeria. Nonetheless, an application for information under this section shall not be refused where the public interest in disclosing the information outweighs whatever injury that disclosure would cause. The current minister of information and culture used this provision to decline the release of information regarding President Mohammadu Buhari's health status and medical bills when he travelled to the UK on medical grounds for 49 days in 2017. The government's argument was that such disclosure would be injurious to national security.Footnote ⁶⁰ Put differently, the minister termed documents and records concerning the president's health as classified documents; disclosing such information would contravene the provisions of this section.

Further, under section 12, an application for information relating to records of public institutions concerning administrative, investigative and enforcement proceedings may be denied if it would affect pending proceedings or may jeopardize ongoing investigations and the security of such public institutions or areas touching on personal privacy. It appears reasonable to think that this section is quite wide, since it allows a public authority to deny citizens access to information on the basis that it may affect pending administrative, investigative or enforcement proceedings of the public authority. However, similar to the provisions of section 11 discussed above, where the public interest overrides whatever injury that disclosure would cause, an application shall not be denied under this section. Section 14 prevents the public from having access to information relating to personal information and matters touching on personal privacy. Section 15 authorizes the refusal to disclose trade secrets and commercial or financial information that is confidential and privileged, or where the disclosure of such information may harm the interests of third parties. Section 16 states that information relating to professional privilege (including lawyer-client and doctor-patient privilege) or other privileges conferred by law are exempt. Section 17 provides that a public institution will be allowed to deny an application for information that contains course or research materials prepared by faculty members. Finally, section 19 of the FoI Act permits a public institution to refuse an application for information pertaining to library circulation and records, test questions, scoring keys, examination data relating to public institutions, and architects’ and engineering plans of public institution buildings or buildings built with public funds.

Where an application for information has been denied on the ground that it is information that is exempted from public knowledge, section 20 allows for judicial review of that denial. Under this section, an applicant whose application for information has been denied may apply to the court for a review of the matter within 30 days after the public institution denied or is deemed to have denied the application, or within such further time as the court may allow for the judicial review. Arguably, this is the most important section of the FoI Act because it authorizes the court to give a commanding and convincing interpretation of any provision of the act. Many cases have been instituted by interested parties as a result of the provisions of this section.Footnote ⁶¹ While section 21 allows for such an application to be heard and determined summarily, section 22 grants the court the right of access to the information sought to be denied, for the purpose of determining whether the information falls within the exemptions provided by the FoI Act and whether the injury of disclosure outweighs the public interest in disclosure. Under section 26, the act does not apply to published material or material available for purchase by the public, library or museum material made or acquired and preserved solely for public reference or exhibition purposes, or material placed in the National Library, National Museum or non-public section of the National Archives of the country on behalf of any person or organization other than a government or public institution. Under section 27, “no civil or criminal proceedings may be brought against an officer of any public institution, or against anyone acting on behalf of a public institution, for the disclosure in good faith of any information pursuant to the Act”. Section 30(1) further provides that the act is intended to complement, not replace, the existing procedures for access to public records, and is not intended to limit public access to information.Footnote ⁶²

Lastly, section 31 of the act (the interpretation section) includes a general definition of public institution as a “legislative, executive, judicial, administrative or advisory body of the government, including boards, bureau [sic], committees or commissions of the State, and any subsidiary body of those bodies including but not limited to committees and sub-committees which are supported in whole or in part by public funds or which expends [sic] public fund [sic] and private bodies providing public services, performing public functions or utilizing public funds”. It is also important to note that section 2(7) of the act extends the definition of public institution to include all companies in which the government has a controlling interest and private companies utilizing public funds, providing public services or performing public functions.

CHALLENGES TO THE EFFECTIVE IMPLEMENTATION OF THE FoI ACT

There are many challenges to the effective implementation of the FoI Act in Nigeria. One of these is the seemingly unending tussle between harmonizing the requirements for secrecy in public governance and the liberty of the general public to obtain information regarding how they are governed.Footnote ⁶³ It will be recalled that section 1(1) of the OSA prohibits “any person” from revealing official facts and figures, and any person who transmits, obtains, reproduces or retains any classified matter will be guilty of an offence. According to the provisions of section 1(2) of the OSA, a public officer who fails to comply with any instructions given to him on behalf of the government as to the safeguarding of any classified matter that is obtained by him or under his control by virtue of his office, is also guilty of an offence. Under section 9(1) of the OSA, classified matter is defined to mean “any information or thing which under any system of security classification from time to time in use by any branch of government, is not to be disclosed to the public and of which the disclosure to the public would be prejudicial to the security of Nigeria”. A public officer, for the purpose of the OSA, includes a person who formerly exercised, for government purposes, the functions of any office or employment under the state. As submitted by Ajulo, the idea behind this law is ordinarily to protect vital government information, but the level of secrecy is so extreme that some classified government files contain ordinary information like newspaper cuttings that are already in the public domain.Footnote ⁶⁴ So impenetrable is the veil of secrecy, that government departments withhold information even from each other under the guise of official secrets legislation. As a result, the OSA is widely identified as the reason for secrecy in government dealings and the ease with which public funds are dissipated with little or no need to account to the people.Footnote ⁶⁵

With the passing into law of the FoI Act, the thinking is that “the absolute hegemony of the Official Secrets Act in Nigeria will come to an end, and that official information will now be readily available to Nigerians”.Footnote ⁶⁶ While this may be the case in theory, it appears not to be so in practice. The rate at which applicants’ requests for information continue to be refused in the country, using the OSA as excuse, is still high. In this context, the Legal Defence and Assistance Project states that, despite having “made requests to more than 30 organizations, it is only in one case that the information was provided unhindered”.Footnote ⁶⁷ Another non-governmental organization, R2K, reports a similar experience. According to it, “of a total of 39 government institutions assessed, none had complied with the obligation to disclose information”.Footnote ⁶⁸ According to a former federal head of service, this attitude of public institutions in general reveals the “lack of desire by public officers to (willingly) shift from a culture of secrecy to that of transparency”, quoting their age-long operation under various laws of secrecy, especially the OSA.Footnote ⁶⁹ In an interview, a civil society respondent essentially noted that, while the law promotes wide access to data and information across the board, its implementation is somewhat slow and information is not readily given, even when it is basic. In this context, the respondent said: “[t]here is still some level of unwillingness on the part of public officers and institutions to respond to requests. In many cases, they neither reply nor even acknowledge the requests made to them, and even when they do respond, they hardly ever comply with the mandatory 7-days limit imposed by the Act or see the need to ask for and give reasons for an extension period”.Footnote ⁷⁰ As another civil society respondent opines: “[o]n paper, the FOI Act remains a very good tool for data access. In practice, however, its implementation is lacking in many ramifications, presumably because of attitudinal issues based on old habits acquired as a result of the application of the OSA. This acts as a big challenge to the effective implementation of the law”.Footnote ⁷¹

The contention here is that this attitude will negatively affect the implementation of the FoI Act, considering its potential to discourage members of the public who may not have the funds or time to go to court, especially with the costly and time-wasting nature of court cases in the country.Footnote ⁷²

Again, it can be argued that section 1 of the FoI Act is restrictive, in that it only protects access to information held by public institutions. Information kept by private institutions that is meant for the public (for example bank statements of government agencies and reports of medical research in the custody of private firms) is not protected. This situation works against the effective implementation of the act. By way of comparison, the South African Constitution allows citizens to have access not only to information held by the state, but also to any information held by another person, provided the information is required for the exercise or protection of the citizen's rights. In accordance with section 32 of the South African Constitution, “everyone has the right of access to any information held by the State” and the section provides “for the horizontal application of the right of access to information held by another person to everyone, when that information is required for the exercise or protection of any rights”.Footnote ⁷³ This particular right is further expounded in the preamble to the South African Promotion of Access to Information Act 2000.Footnote ⁷⁴ Unfortunately, this is not the case in Nigeria, as neither Nigeria's Constitution of 1999 (the Constitution) nor the FoI Act has any direct provision mandating public authorities to disclose information, even when the information is in the custody of private persons. In fact, section 39(3) of the Constitution supports the non-disclosure of information in certain situations. According to this sub-section, nothing in section 39(1) shall invalidate any law that is reasonably justifiable in a democratic society for the purposes of preventing the disclosure of information received in confidence (inter alia). The significance of this is that the Constitution expressly prohibits and prevents people from disclosing information at their disposal, if that information has been received “in confidence”.

Beyond the provisions of section 1, it will be observed that the FoI Act contains more exemption sections than sections granting access to information. In this context, only sections 1 and 3 grant access to information, while as many as ten sections (sections 7, 11, 12, 14, 15, 16, 17, 18, 19 and 26) are intended to deny the public access to information. This means that some “rogue” public officers may use these exceptions for unjust and mischievous purposes. According to a stakeholder, the natural consequences of these exemption provisions is a law that is unable to strengthen investigative journalism. According to him: “[i]nvestigative journalism requires an enormous amount of freedom. Unfortunately, the exemption clauses in the Act take back almost the entirety of what it gives. Using these exemption provisions, it will be easy for public officials to deny access to information which they do not want to make public”.Footnote ⁷⁵

Under section 11 of the FoI Act, disclosure of information may be denied if it will be injurious to the conduct of international affairs and national defence. This exception is qualified under section 11(2), which states that “notwithstanding subsection (1), an application for information shall not be denied where the public interest in disclosing the information outweighs whatever injury that disclosure would cause”. Although the author concedes that section 11(2) has restricted the application of section 11(1) by limiting the scope of the latter's operation, it is also true that the section has created room for government officials and institutions to hide under the excuse of international affairs or national defence to refuse access to information. What exactly amounts to international affairs? Under what particular circumstances can it be said that a government is defending the country? These are salient points that the act did not specify, thus leaving them within the realm of conjecture and speculation. A good example of this controversy can be found in the appropriation and expenditure of funds identified as “security votes”. Public officials hide behind national defence to refuse the disclosure of funds that they have appropriated for security in Nigeria. Yet, it is now common knowledge that the issue of security vote appropriation in Nigeria has become an avenue for government officials to dissipate public funds without examination, analysis or responsibility and without providing “security” for anyone except for the executives’ pockets and bank accounts.Footnote ⁷⁶ Admittedly, it is usually difficult for any legislation to recognize all the potential circumstances that could face public authorities and would need to be taken into account when balancing different interests; any attempt to define the term “public interest” exhaustively is therefore likely to fail, leading to the argument that issues of definition should be left to the courts (acting in good faith) to develop jurisprudential guidance as to the appropriate meaning of the term in specific situations. Nevertheless, the author is of the opinion that the FoI Act should assist the courts in this task, by clearly spelling out the objects it seeks to promote and then mandating the courts to interpret the law so as to promote those objectives. It should offer guidance to the courts on how actually to measure whether the harm articulated in a particular exemption provision outweighs the public interest requirement or is dwarfed by it.

Another challenge to the realization of the purpose of the act is the issue of record keeping. Under section 10, it is mandatory for every government or public institution to keep proper records or information about their operations, activities and other relevant and related information or records, in a manner that facilitates public access to such information or records. It may not be out of place for some “unscrupulous” officials to attempt to undermine the FoI Act through the ineffective keeping and storing of records from meetings and discussions.Footnote ⁷⁷ On this issue, a serving permanent secretary in the Ministry of Youth and Sports, while agreeing that most government departments in the country face the challenge of keeping records, added: “[i]t is difficult for government departments to release information to the public. In order to release information, you need to have it in your possession. Poor and sometimes non-existent record keeping is therefore a major challenge to the effective implementation of the FOI Act in Nigeria”.Footnote ⁷⁸ In such a situation, it will be difficult for such information to be released to any interested party, thus defeating the aim and purpose of the act.

Furthermore, as noted above, sections 4 and 6 of the FoI Act provide time limits for public institutions to respond to requests for information. Considering the length of time public institutions require to respond to requests for access to information, these time limits appear unrealistic. With the nation's civil service still running an “analogue system” of information keeping and retrieval, it appears counter-productive to expect public authorities to produce information within seven (or 14) days, as the case may be.Footnote ⁷⁹ In other jurisdictions, public authorities are given more than seven days to respond to information applications. For instance, in the UK, public authorities are given 21 days to respond to information applications.Footnote ⁸⁰ The Australian Freedom of Information Act provides for a decision period of 30 days.Footnote ⁸¹ In the South African Promotion of Access to Information Act, the initial time limit is set at 30 days, which may be extended for a further 30 days for a number of reasons, including where the request is for a large number of records, where the request would unreasonably interfere with the activities of the public body concerned, where consultation between different public authorities is required or where the applicant consents to an extension.Footnote ⁸²

Additionally, the provisions of section 29(6) of the FoI Act appear to be an impediment to the effective implementation of the act. This section enjoins relevant government authorities, especially the AG, to ensure that public institutions comply with the provisions of the act. Considering that the AG is a government official himself, it may be difficult for him to play this role effectively. It would also amount to his being a judge in his own cause when it comes to ascertaining whether he has, in his capacity as the AG, complied with the provisions of the act. Perhaps the provision would be more effective if this duty were entrusted to a neutral and independent body established by statute. For instance, in South Africa, the Promotion of Access to Information Act is primarily enforced by the country's Human Rights Commission.Footnote ⁸³

Furthermore, section 7(5) of the FoI Act appears to challenge the effective implementation of the act. This section provides that “where a case of wrongful denial of access is established, the defaulting officer or institution commits an offence and is liable on conviction to a fine of N500,000.00”.Footnote ⁸⁴ While the intention of this provision is laudable, the point is that it can only be given effect in criminal proceedings and cannot be triggered in a civil action. At the time of writing, there is no known case where the AG has enforced this provision, notwithstanding the numerous cases of refusal to comply with the act. Since criminal matters can only be instituted by the government or with its permission, it is doubtful whether the AG will prosecute a public institution or official who refuses to comply with the provisions of the FoI Act.Footnote ⁸⁵ If the purpose of section 7(5) is to be realized, then the enforcement of the subsection may need to be extended to accommodate private persons. This would be without prejudice to the capacity of private persons to initiate and secure writs of mandamus against the AG, compelling him to institute actions under section 7(5) against public institutions and officials who breach the act's provisions.

Where information is improperly denied, the act allows the court to compel the public agency or official to grant the application for access. Section 2(6) provides that anyone denied access to information may apply to the court to compel disclosure of the information. However, this process may prove both costly and slow, and could have been dealt with better in the FoI Act through the inclusion of a provision for the establishment of an independent administrative body to promote compliance with the act. Such a body would be more accessible and affordable than the courts and could resolve disputes relatively quickly. The establishment of such an independent body would have proved invaluable in addressing the culture of secrecy, which is often the greatest barrier to transparent disclosure. It would also have helped to expose and embarrass public authorities with poor disclosure records or that actively seek to undermine the objectives of the legislation.

Perhaps the greatest challenge to the effective implementation of the FoI Act is the inconsistency of the decisions of the Nigerian courts, and the seemingly passive attitude of some members of the Nigerian bench towards the proper enforcement of the act. While conceding that some judges have demonstrated a fair degree of eagerness to enforce the rights contained in the act, it is equally true that other judges are still unwilling to give effect to its spirit and intention. In this context, while some of the cases recorded successes, others failed to achieve their target. In Public & Private Development Centre Ltd / GT v Power Holding Company of Nigeria (PHCN) Plc and Attorney General of the Federation,Footnote ⁸⁶ PHCN conducted a procurement exercise in 2011 involving the award of contracts for the supply of equipment across various locations in Nigeria. The applicant, pursuant to its right of access under the FoI Act, requested information from the company relating to the procurement exercise. The request was refused and the applicant applied to the court to declare the refusal to be wrongful. The trial judge held that the refusal was wrongful and ordered PHCN to release the information requested.

Again, in Public & Private Development Centre Ltd / GT v National Agency for Food and Drug Administration and Control (NAFDAC) and The Director General NAFDAC,Footnote ⁸⁷ the applicant made a request to NAFDAC for information relating to certain contracts awarded by the government agency. The request was refused. The applicant went to court, asking the court to declare the refusal wrongful. The respondents asked the court to strike out the suit on the ground (among others) that the applicant failed to fulfil a condition precedent before commencing the action, in that it had not served a month's pre-action notice on the respondents as required by section 27 of the NAFDAC Act 2004. The court resolved the matter in favour of the applicants and held that the provisions of section 20 of the FoI Act takes precedence over that contained in section 27 of the NAFDAC Act. Section 20 of the FoI Act gives an applicant 30 days from the date of refusal of the request to bring an application to court. Complying with the one month pre-action notice, contained in section 27 of the NAFDAC Act, would rob the applicant of the right to approach the courts.

Furthermore, in Legal Defence & Assistance Project (Gte) Ltd v Clerk of the National Assembly of Nigeria,Footnote ⁸⁸ the applicant had requested details of the salary, emoluments and allowances paid to all members of the National Assembly, in both the sixth and seventh assemblies. This request was denied. The applicant brought this action for the wrongful denial of information. The respondent brought a preliminary objection claiming that the suit was incompetent, considering that its mode of commencement was alien to the Federal High Court (Civil Procedure) Rules 2009. The court disagreed with this argument on the ground that, by a combined reading of sections 20 and 21 of the FoI Act, an application can be summarily heard and determined without the strict application of the rules of court procedure with respect to judicial review. The court, therefore, mandated the respondents to disclose the information sought.

On the other hand, many cases that have been instituted to compel the disclosure of information under the FoI Act have failed. In this context, in Congress for Progressive Change (CPC) v Independent National Electoral Commission (INEC),Footnote ⁸⁹ the plaintiff asked the defendant to supply information on the expenditure incurred by INEC in the conduct of the general elections of April 2011. The defendant refused to comply and the plaintiff approached the court, asking it to compel the defendant to supply the requested information. The defendant's counsel argued that the court lacked jurisdiction to entertain the matter on the ground that the information from April 2011, sought by the plaintiff, predated the enactment of the FoI Act (which came into force in May 2011) and that the law cannot be made to operate retrospectively since the act contains no clear and express provision relating to retrospective application. Conversely, the plaintiff's counsel argued that the correct position of the law is that the statute in force when a cause of action arose will be the applicable law and that any changes to the law will not affect the accrued rights and obligations unless the law is made retrospective. Since the plaintiff's cause of action arose on 22 November 2012 (when the request was refused) the FoI Act was applicable, particularly since public information or records in existence before the enactment of FoI Act were contemplated by virtue of section 31 of the act. Surprisingly, the court agreed with the defence counsel's arguments that the plaintiff's claim was not recognized under the FoI Act and, so, refused to order disclosure. This decision has been criticized as being fundamentally wrong.Footnote ⁹⁰ According to Etemire, the court did not consider that the principle of non-retrospective effect concerns the time a cause of action arose and not the date of creation of the object of the relief: in this case, information.Footnote ⁹¹ If the cause of action arose before the enactment of the FoI Act, the plaintiff would be unable to rely on the act for any relief sought, since it cannot apply retrospectively. In the present case, however, the law in force at the time the cause of action arose and at the time of trial was the FoI Act. As a result, the act should be the applicable law in the case and vested the court with jurisdiction.Footnote ⁹²

In Public & Private Development Centre Ltd / Gte v Nigerian National Petroleum Corporation (NNPC) and the Group Managing Director, NNPC,Footnote ⁹³ the applicant's request for information concerning procurement plans and information was refused. The applicant approached the court to enforce his rights of access to the requested information by declaring the respondents’ refusal to be illegal and contrary to the provisions of the act. The judge struck out the suit on the ground that the applicant did not fulfil the condition precedent to the institution of the action, by issuing and serving a month's pre-action notice on the defendant, as prescribed in section 12(2) of the NNPC Act. This reasoning appears to be incorrect because the right of access to information under the provisions of the FoI Act supersedes the pre-action notice provision in the NNPC Act.Footnote ⁹⁴ The correct position of the law in this area appears to be that which was expressed by the court in the NAFDAC case.Footnote ⁹⁵

In Paradigm Initiative Nigeria (PIN) v Dr Reuben Abati,Footnote ⁹⁶ the applicant requested the then special adviser to President Goodluck Jonathan on media and publicity, Dr Reuben Abati, to disclose to it, in accordance with the FoI Act, specified information on the multi-million dollar contract awarded by the presidency to an Israeli company, Elbit Systems Cyber Defense. When this request was refused, the applicant approached the court to compel the defendant to disclose the requested information. The court refused to grant leave to the applicant to apply for an order of mandamus compelling the special adviser to disclose the information, holding that the applicant was not entitled to the information sought because it did not disclose any special interest it had in the information requested. This is against the background that section 1(2) of the FoI Act declares that those applying for the disclosure of information are not required to demonstrate any interest in the information requested.Footnote ⁹⁷ Etemire submits that the position of the judge in this suit is contrary to the locus standi provision of the act, which “represents best practices as it is incorporated into many FoI laws of many countries around the world, including Sweden, South Africa, Uganda and India”.Footnote ⁹⁸

From this analysis, it is clear that, while some courts in Nigeria have readily enforced the provisions of the FoI Act, others have refused to follow the same trajectory, leading to blurred interpretations of the act's provisions. In their bid to justify their refusal to grant applicants the right to access information on public governance, they sometimes arrive at confusing and startling decisions. In this situation, where the main enforcers of the law (ie the courts) continue to give inconsistent decisions, the result will be a “blunted” law that will not effectively serve the purpose for which it was enacted.

STRENGTHENING ENFORCEMENT OF THE FoI ACT IN NIGERIA

From the foregoing, it is clear that the effective implementation and enforcement of the FoI Act is as yet an illusion. Some of the challenges analysed above have made it impossible for the intentions behind the act to be fully realized. Below are some suggestions that the author hopes will help to strengthen the application of the act, and further help in entrenching openness and accountability in information access and public governance in Nigeria.

Without doubt, a major challenge to the effective implementation of the FoI Act in Nigeria is illiteracy. Access to information requires a literate population. The adult literacy rate in Nigeria stands at 57.9 per cent.Footnote ⁹⁹ The implication of this is that about 70 per cent of Nigerians are illiterate.Footnote ¹⁰⁰ In view of the low literacy rate, coupled with the challenge of accessibility, gazettes and other government publications have proven ineffective in publicizing the FoI Act. Many Nigerians are still unaware of the act's existence, let alone knowledgeable of its provisions. As a matter of fact, most of the public servants interrogated in the course of research for this article admitted they had found no reason to read the FoI Act. As a result, public awareness and enlightenment about the act (both within government circles and outside) should be increased. According to one stakeholder: “[t]he issue of wider publication could bring about more demand for information and in this way elicit increased release of same. This will guarantee the non-concealment of information by public officials and safeguard people's trust in both the government and its institutions”.Footnote ¹⁰¹

For a legal adviser in the Federal Ministry of Works, Abuja, “moving from the culture of secrecy to openness is a major challenge to the implementation of the FoI in the public service”.Footnote ¹⁰² Accordingly, “this challenge could be surmounted by organizing sensitization campaigns and workshops for public servants”.Footnote ¹⁰³ This will help them to know that the act is not an enemy, but an important mechanism for fighting corruption.

This article recommends publicizing the act, not only in urban areas but also in rural communities all over the country. This will greatly help enlighten the public on the need for and the benefits of the FoI Act, as well as their rights and responsibilities under the law. This awareness campaign should be effected using posters, flyers, radio and television announcements, drama, blogs, websites, Facebook, Twitter and mobile phone apps. Similarly, a simplified or abridged version of the act should be produced to assist members of the public to understand its provisions. The publications should be written in different local Nigerian languages, to bring the provisions home to the people. Moreover, institutions such as the National Orientation Agency, the Nigeria Bar Association, media houses and civil society organizations should be part of the campaign to educate Nigerians on the existence of the law, and their rights and obligations under it.

This article suggests that the FoI Act should be reviewed to amend some of the provisions that undermine its effective implementation. For example, the provisions of sections 2(6) and 29(6) should be amended to create an independent administrative body that will ensure compliance with the provisions of the act. Monitoring the implementation of access to information laws should be regular and systematic, with the aim of generating reliable data on all aspects of the implementation of the law. Section 29(6), which gives power to the AG to monitor and ensure compliance with the provisions of the Act, appears to leave much to be desired. The AG would become a judge in his or her own cause in situations where he or she is the public authority required to disclose information. Moreover, in as much as the AG is a public officer, this officer's first loyalty will always be to the government that appointed him or her. In this context, the AG (or any other public officer for that matter) will not be in the best position to carry out this duty effectively. This article suggests, therefore, that these provisions should be amended to entrust ensuring compliance with the provisions of the FoI Act to an independent administrative body (for instance the National Human Rights Commission or a similar civil society organization) that will be neutral, impartial and fair.

It is also suggested that the provisions of section 7(5) of the act should be amended, in order to extend its application further, such that it can be triggered in civil cases. As noted above, the sanctions imposed by this section can only be invoked in criminal matters. Since criminal matters can only be instituted by the state or its representative, erring officials will hardly ever be prosecuted, because they would in most cases be working in the interests of the government. If the provision were extended to civil cases, then non-government parties who are able to prove wrongful denial would also be allowed to recover such sums from public authorities engaged in denying access.

Furthermore, it was also noted that the provisions of section 11(2) of the act provide for the disclosure of information where that is in the public interest. While it is conceded that public interest is an inherently flexible concept that is not easy to define, it also appears reasonable to think that the framers of the act could have clearly stated the objectives that the act set out to achieve, and enjoin courts when interpreting such flexible concepts as “public interest”, to consider these objectives and work towards their realization. The act could be amended to incorporate these set objectives.

Also, the time limits set in sections 4 and 6 of the act appear to be unrealistic. Considering the “analogue system” of information keeping and retrieval inherent in the Nigerian public service, it is necessary to extend the time given to public officials to respond to a request for information. Therefore, it is suggested that there should be an upward review of the provisions of these two sections to reflect international best practice. In this regard, 30 days in the first instance, to be extended by another 15 days where it is not reasonably possible to respond within the initial time frame, is considered apposite.

Section 10 mandates every government or public institution to keep proper records or information about their operations, personnel, activities and other relevant and related information or records, in a manner that facilitates public access to that information or records. What happens if the public authority involved deliberately decides not to keep proper records?Footnote ¹⁰⁴ To prevent this from happening, the act should have a stipulation making it an offence for any official to keep or store information “improperly” (as opposed to destroying information that is covered by the section) and provide sanctions for any breach. It is, therefore, suggested that section 10 (which sanctions the destruction of documents) should be amended to extend its sanctions to the improper keeping of information or documents by public authorities. Furthermore, this article advocates the adoption of information and communications technology in keeping records in government establishments to ease information dissemination and access.

This article also recommends the abolition of the OSA,Footnote ¹⁰⁵ legislation that is commonly blamed for secrecy in government transactions and the ease of corruption by Nigerian public authorities. This recommendation is supported by two arguments. First, the OSA conflicts directly with sections 28 and 29 of the FoI Act and the canon of interpretation is that, where two statutes or laws conflict with each other, the latter prevails as it is deemed to have come into existence to correct the mischief and anomalies of the former.Footnote ¹⁰⁶ Secondly, the FoI Act has constitutional flavour in the sense that it derives from and has its foundation in sections 22 and 39 of the Constitution, and section 1(3) of the Constitution provides that, where any enactment is inconsistent with its provisions, the Constitution will prevail and the other law will be null and void to the extent of that inconsistency.Footnote ¹⁰⁷ In endorsing the people's right to know, the FoI Act acknowledges that sovereignty belongs to the people, and that the quality of information available to a society leverages the quality of its participation in public affairs. Extreme secrecy in governance and a poor information flow breeds suspicion and misunderstanding among the populace and prevents the necessary cooperation required for development.Footnote ¹⁰⁸ It appears reasonable to think, therefore, that the OSA should be abolished. It has served its purpose and should be deposited where it rightly belongs: in the archives. In this context, this article recommends the radical reorientation (through constant training and re-training) of those in public service, in order to enhance their understanding of the spirit and intention of the FOI Act, and draw a line between it and the OSA.

As stated above, South Africa, one of the first African countries to pass FoI legislation, has a constitutional provision (under section 32) guaranteeing access to public information, even that held in private hands. While the Nigerian Constitution provides for freedom of expression under section 39(1), it has no direct provision for the disclosure of public information in private hands. This omission must be corrected. The truth is that private bodies (like banks and medical institutions) are usually in possession of information that is also useful to the public. Having a provision that mandates such information to be disclosed (if disclosure is in the public interest) will greatly aid the effective implementation of FoI legislation. As a result, it is suggested that, since it will be more cumbersome to amend the Constitution, the FoI Act should be amended instead, to include this provision.

It is without doubt a fact that courts play prominent roles in ensuring the effective interpretation and enforcement of the provisions of the FoI Act. However, as noted above, the decisions of some Nigerian courts have raised concerns about the general willingness of the courts to engage in judicial activism, especially in cases relating to the right of access to information. According to a judge of the Federal High Court, Enugu Division, south-eastern Nigeria, the FoI Act helps to protect citizens’ rights, as well as supporting fairness, equality and the participation of the citizenry in government. However, with the conflicting decisions emanating from the courts, the learned judge advocated, “the training and re-training of judicial officers and their supporting staff in issues concerning the FoI Act. This will expand and improve their overall knowledge of the Act. There should also be continuing education for all categories of judicial officers through the facilitation of study courses, lectures, seminars, workshops and conferences to enable them to understand and apply the law effectively”.Footnote ¹⁰⁹

In some of the cases analysed above, legitimate requests for access to information on public spending were blocked by the courts. This attitude will, inevitably, serve to discourage applicants for information from approaching the courts for the enforcement of their rights to access information.Footnote ¹¹⁰ Conversely, it will encourage public authorities to maintain their culture of secrecy, despite the existence of the FoI Act. In this context, the Nigerian judiciary needs to emulate its Indian counterpart, which has continued to display judicial activism in issues concerning rights of the people to access information under the Indian legal system (even before the enactment of the Indian Right to Information Act, 2005). In the case of State of Uttar Pradesh v Raj Narain and Others,Footnote ¹¹¹ decided almost 20 years before the Indian Right to Information Act became law, the Supreme Court of India considered whether privilege can be claimed by government to refuse disclosure of information and access to documents. The court held unequivocally that:

In Dinesh Trivedi MP and Others v Union of India and Other, the same Supreme Court held that: “[i]n modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the government which, having been elected by them, seek to formulate sound policies of governance aimed at their welfare. Democracy expects openness and openness is a concomitant of a free society”.Footnote ¹¹³ In SP Gupta v Union of India,Footnote ¹¹⁴ one of the questions for determination before the court was whether the Union of India was entitled to withhold disclosure of all correspondence between the law minister and the chief justice of High Courts of Delhi and Patna in connection with the non-appointment and transfer of certain judges. Answering in the negative, Justice Bhagwati of the Indian Supreme Court stated: “[n]o democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government … The concept of open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a)”.Footnote ¹¹⁵ Similarly, Justice Krishna Iyer observed that the right to express one's thoughts is meaningless if it is not accompanied by a related right to secure all information on matters of public concern.Footnote ¹¹⁶ The Nigerian judiciary is urged to emulate this type of advocacy (and activism) in access to information cases, to ensure compliance with the provisions of the FoI Act. To help them do this effectively, it is recommended that judges should be exposed to periodic capacity building and training, in order to enhance their competence in the area of FoI related matters. This can be done through targeted continuous professional development programmes.Footnote ¹¹⁷

To change the bureaucratic inertia and resistance to easy access to information, deliberate efforts should be made to sensitize public institutions and officials at all levels of government about the public's right to access information in their possession. Sensitization should not be limited to FoI officials alone, but should include all the officials whose duty it is to serve the public. Again, public authorities are encouraged to be proactive in dealing with the disclosure of information. Proactive disclosure reduces the burden on public institutions to process numerous individual requests for information from members of the public under access to information legislation. Accordingly, public institutions should take advantage of this important mechanism in national laws to make information available to the public, as this will also enhance citizens’ trust in them.