Freedom of Information Act 2011: The Journey So Far

Contributor By Tobenna Mogbo

INTRODUCTION

The draft, passage, and subsequent implementation of the Freedom of Information Act have left an indelible mark on Nigerian history, ensuring that it will be remembered for years to come. Although enshrined in the Constitution of the Federal Republic of Nigeria as the freedom of expression^[1], the war for the transfer of these rights from paper to reality dates as far back as 1993 with the campaign by Media Rights Agenda (MRA), Civil Liberties Organization (CLO) and the Nigerian Union of Journalists for the implementation of access to government record as the prerequisite for freedom of expression^[2]. This campaign led to the 1994 draft: Draft Access to Public Record and Official Information Act^[3].

After numerous revisions and several military/democratic government dynamics, the bill was passed into law and received presidential assent on 28^th May 2011 by President Goodluck Jonathan.

This paper seeks to examine the journey so far in light of the introductions made by the Act and a retrospective analysis of the effectiveness of the provisions on present challenges.

BRIEF APPRAISAL OF THE INNOVATIONS OF THE ACT

It goes without saying that the Freedom of Information Act heralded a new era for Nigerians, particularly in the Nigerian media and journalism space. Its passage after an extended existence as a bill in the Senate marked a huge victory for Nigeria and Nigerians.

This Act was made in furtherance of the constitutionally guaranteed right of freedom of expression that 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”^[4].

An overview of the objectives of the Act can be clearly glimpsed from the long title of the Act which describes it as:

“A Bill for an Act to make public records and information more freely available, provide for public records and information, protect 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 of disclosing certain kinds of official information without authorisation and establish procedures for the achievement of these purposes and related purposes thereof, 2006”

The most laudable innovation of the Freedom of Information Act is the free access to public records, albeit subject to certain reasonable limitations and exceptions. This innovation is arguably the greatest achievement of the Act as it facilitates governmental accountability and transparency as opposed to the previously obtainable position where government institutions and policies are shrouded in secrecy and sealed by an oath of secrecy sworn to by public officials which appears to put the government before the welfare of its people^[5].

What is most commendable is that the Act provides that no special interest need be shown or proven by the party applying for the information from the public institution and agency^[6]. This provision implies that no individual can be precluded from receiving information on the premise of lack of sufficient interest. This also means that in the event that there is litigation arising from the inability or refusal of the public institution or agency to disclose information, no objection as to interest or locus can be raised in court to oust its jurisdiction^[7].

The Act also provides that where a public institution is unable to disclose the information in the time required or is of the opinion that another agency has more responsibility in disclosure, the same must be communicated with clear reasons or transmitted to the Agency responsible^[8].

The Act further mandates that public institutions or agencies should keep and maintain public records to ensure that public access can be guaranteed on request with the inclusion of mandatory publication^[9].

Interestingly, the Act also protects whistle-blowers from criminal or civil liability notwithstanding any contrary provision in the Cri0minal Code, Penal Code, the Official Secrets Act, or any other enactment, in so far as the purpose of the disclosure is to expose “mismanagement, gross waste of funds, fraud, and abuse of authority; or a substantial and specific danger to public health or safety, notwithstanding that such information was not disclosed according to the provision of this Act”^[10].

The Act contains several other provisions that revolutionized press freedom and freedom of information in Nigeria such as criminalization of destruction of records^[11] and supervision by the Attorney General of the Federation^[12], but the most important question sought to be answered is how effective is this Act and its extant provisions twelve years down the line?

ANALYSIS OF THE EFFECTIVENESS OF THE ACT

The major objective of the Act was and still remains to enhance governmental accountability, elevate public engagement, encourage widespread participation in public affairs, hold private enterprises to greater account, scrutinize and unveil instances of corruption, foster improved decision-making, safeguard privacy, bring to light human rights violations, champion workers’ rights, and contribute to bolstering national security^[13].

The effectiveness of the objective of this Act can be evaluated from several angles. One of such is the attitude of Courts to the provisions of the Act^[14]. The attitude of the Court has been quite impressive regarding the interpretation of the Act in a manner as to inspire public confidence. In the case of Uzoegwu v Central Bank of Nigeria & Anor^[15] and Okazie v Attorney General of the Federation & Anor,^[16] the Court ordered full disclosure of the salaries of top public officials in the Central Bank of Nigeria and the sum recovered from Cecilia Ibru respectively within 14 days. The same has also held true in the cases of Citizens Assistance Centre v Ikuforiji^[17], PPDC v Power Holding Company of Nigeria^[18], Okazie v Central Bank of Nigeria,^[19] and a host of other cases where the judiciary upheld the principles of disclosure contained in the Act, adherence and compliance of public authorities and institutions to the provisions of the Freedom of Information Act. This is a vital element to consider as the Act is primarily focused on ensuring accountability and transparency at all levels of government^[20].

It can further be argued that although there is a level of compliance with the provisions of the Act by government agencies, there are still traces of disregard by government agencies hiding under the umbrella of the exceptions provided under the Act. A typical example occurred in 2017 when President Muhammadu Buhari’s health status and the medical bills for the President’s 49 days medical vacation in London, United Kingdom were questioned after it was extended from 10 days owing to a written request to the National Assembly, which lasted till March 10, 2017. Despite repeated requests by Nigeria citizens, including the mass media for the full disclosure of the president’s medical bills and health status to Nigeria as a mark of accountability and transparency, these demands were refused.

The argument brought against this refusal was that the president was a public official and his medical expenses were from the public purse; it was normal for him to disclose such useful information about his state of health^[21].

Disappointingly, the presidency declined to heed the request and went ahead to defend their stance stating that the Freedom of Information Act exclude issues bordering on national news media and mass Communication; and so the request for the disclosure of the President’s medical bills should be considered on the basis of ‘national security and morals’^[22]. It should however be noted that the same section provides 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”^[23]

A review of the foregoing leads to the conclusion that although the Act has not recorded a 100% success rate, it has and continues to leave its mark in the sands of the fight for freedom to information for the members of Nigerian Society. These achievements are, however, not void of certain challenges.

CHALLENGES OF THE FREEDOM OF INFORMATION ACT

A major hindrance to the effective implementation of the Act as many other legislations in Nigeria is an alarming rate of ignorance of the existence and the contents of the Act by citizens and more specifically, public officials^[24].

There is also the issue of the exceptions provided in the Act which allows for certain categories of information to be withheld. These provisions are open to misuse and far-reaching interpretations that seek to frustrate the very bedrock of the Act^[25]. Although this seems to have been envisaged by the Act as a subsequent provision allows disclosure of otherwise confidential information where public interest outweighs any foreseeable injury, the provisions are still open to judicial interpretation capable of swinging the pendulum either way^[26].

Similarly, inadequate training of officials and non-availability of technological aid continues to cripple the information storage and request processing process despite its inclusion in the Act^[27].

CONCLUSION

It can scarcely be argued that the Freedom of Information Act has not charted a new course for Nigeria more than a decade down the line. The challenges experienced by the Act regardless, the Act has been and continues to be a game changer for Nigeria and Nigerians. Whether it would live up to the full expectations of the lawmakers remains a question yet to be answered.

1. See generally Section 39 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) ↑
2. Arogundade, L. “Constitutuional Recognition for Press/Media Freedom”. (2012) A Conference Paper Presentation delivered during the review of 1999 Costitutionon in Ibadan ↑
3. Ekuno, M “Reasons for Non Implementation of Freedom of Information Bill”. The Punch Newspaper of 13th August 2010. ↑
4. Section 39(1) of the Constitution of the Federal Republic of Nigeria 1999(as amended) ↑
5. Oji, R., and Okechukwu I. “Oath of secrecy in the Nigerian public service.” Arabian Journal of Business and Management Review (Nigerian Chapter) Vol 2.8 (2014). Available at https://www.semanticscholar.org/paper/OATH-OF-SECRECY-IN-THE-NIGERIAN-PUBLIC-SERVICE-Oji-NwachukwuEmmanuel/8faab891cccf96434a25c1c50d4a646a6b8e94ae accessed on 17th November 2023 ↑
6. Section 1 (2) of the Freedom of Information Act 2011 ↑
7. Section 1 (3) of the Freedom of Information Act 2011 ↑
8. See generally Section 4 and 5 of the Freedom of Information Act 2011 ↑
9. Section 2 of the of the Freedom of Information Act 2011; Legal Defence & Assistance Project(Gte) Ltd v Clerk Of The National assembly Of Nigeria Suit no: FHC/ABJ/CS/805/2011 ↑
10. See generally section 27 of the Freedom of Information Act 2011 ↑
11. Section 10 of the Freedom of Information Act 2011 ↑
12. Section 29 of the Freedom of Information Act 2011 ↑
13. R2kNigeria (2013). Implementing Nigeria’s Freedom of Information Act 2011: The Journey So Far, a Report on the Level of Awareness, Compliance and Implementation of the Freedom of Information Act, 2011, 18 Months after Its Enactment < http://www.r2knigeria.org/foi-assessment-reports> last accessed on 19 November 2023 ↑
14. Nwabueze Benjamin Obi. The judiciary as the third estate of the realm. Gold Press Limited, 2007. ↑
15. Uzuegwu F.O.C. Esq. v Central Bank of Nigeria & Attorney General of the Federation Suit No FHC/ABJ/CS/1016/2011 ↑
16. Boniface Okazie v Attorney General of the Federation & Anor Suit No FHC/L/CS/514/2012. ↑
17. Incorporated Trustees of the Citizens Assistance Centre v Hon. Adeyemi Ikuforiji Suit No ID/211/2009 ↑
18. Public and Private Development Centre (PPDC) Ltd & Nigeria Contract monitoring Coalition v Power Holding Company of Nigeria Suit No FHC/ABJ/582/2012. ↑
19. Boniface Okazie v Central Bank of Nigeria Suit No FHC/L/CS/514/2012. ↑
20. Adebayo M., and Akinyinka A. “Access to information and transparency: Opportunities and challenges for Nigeria’s FOI Act 2011.” Access to Information in Africa (2013) page 261-285. Available at https://www.researchgate.net/publication/258832172_Access_to_Information_and_Transparency_Opportunities_and_challenges_for_Nigeria%27s_FOI_Act_2011 accessed on 17^th November 2023 ↑
21. Omotayo F. “The Nigeria freedom of information law: Progress, implementation challenges and prospects.” Library Philosophy and Practice 12119 (2015). Available at https://www.bing.com/ck/a?!&&p=22b5c70605aa07a8JmltdHM9MTcwMDc4NDAwMCZpZ3VpZD0xNTM0ZjE4Zi05NTk3LTZkN2UtMzE4Mi1lMzVlOTQyYzZjMjQmaW5zaWQ9NTE4Mw&ptn=3&ver=2&hsh=3&fclid=1534f18f-9597-6d7e-3182-e35e942c6c24&psq=Omotayo+F.+%22The+Nigeria+freedom+of+information+law%3a+Progress%2c+implementation+challenges+and+prospects.%22+Library+Philosophy+and+Practice+12119+(2015).&u=a1aHR0cHM6Ly9kaWdpdGFsY29tbW9ucy51bmwuZWR1L2NnaS92aWV3Y29udGVudC5jZ2k_YXJ0aWNsZT0zMTkyJmNvbnRleHQ9bGlicGhpbHByYWM&ntb=1 accessed on 7^th November 2023 ↑
22. Section 11(1) of the Freedom of Information Act 2011 ↑
23. Section 11(2) of the Freedom of Information Act 2011 ↑
24. Asogwa B. and Ifeanyi J. “Freedom of access to government information in Africa: trends, status and challenges.” Records Management Journal 27.3 (2017) page 318-338. Available at https://www.emerald.com/insight/content/doi/10.1108/RMJ-08-2015-0029/full/html accessed on 20th November 2023 ↑
25. See generally Section 11 and 12 of the Freedom of Information Act 2011 ↑
26. Section 12(2) of the Freedom of Information Act 2011 ↑
27. Section 13 of the Freedom of Information Act 2011 ↑