Undermining Freedom of Information Act – Punch

WHEN in May 2011, Nigeria joined the league of countries that had passed the Freedom of Information Act, the event was widely celebrated by advocates of truth and transparency in governance. As it is globally, the FOI Act provides a legally enforceable right of access to government documents. But more than three years after the Act came into effect, its expected benefits, especially the opportunity for an informed citizenry to participate better in democratic decision-making, remain elusive. The use of the Act has run into the sands. Just as it was in the pre-FOI Act era, government activities are still grossly veiled in obscurity. New efforts should be geared by stakeholders in the quest for exploiting the salient potential of the law in the best interest of the society.

According to the Centre for International Media Assistance, most of the world’s 90-plus freedom of information laws are recent, enacted in the last two decades, and many are exemplary on paper. But many are also poorly implemented. “Surprisingly, but commonly, citizens, national and local public officials, and journalists are often unaware that such laws even exist, much less how they work,” CIMA said in its 2013 report.

Not surprisingly, President Goodluck Jonathan pretentiously signed the FOI bill into law after a circuitous 11-year journey in the parliament and immediately went to sleep. Unlike other countries where governments play an active role in promoting awareness and understanding of the FOI Act among government agencies and the public, and promoting a pro-disclosure culture across government, the President and his ministers have not demonstrated any commitment to the law. It was rightly observed recently that Federal Government agencies were still behaving as if the Official Secrets Act, implicitly repealed by the FOI Act, was still in operation. Some state governments, claiming that the law needed to be domesticated in their domain, have refused to grant access to those seeking information about their activities.

Our judiciary is not helping matters either with its conflicting rulings on the national applicability of the law. As a result, the FOI Act is operating at a very rudimentary level with public officials still holding on tenaciously to the archaic practice of keeping government activities away from the public space. In 2013, at the height of the N255 million bullet-proof car controversy involving Stella Oduah, then the Aviation Minister, a Lagos-based lawyer, Femi Falana, requested the details of the purchase, including budgetary approvals from the authorities. The Nigerian Civil Aviation Authority declined. Falana had also made such demands in respect of the five per cent fuel levy collected by the Federal Roads Maintenance Agency on every litre of petrol and diesel sold at the pump since 2007. It was also to no avail.

Likewise, the Socio-Economic Rights Accountability Project, an NGO, has had a recent request concerning the funding of terrorism turned down by the Central Bank of Nigeria. Lately, SERAP has asked the two main political parties – the Peoples Democratic Party and the All Progressives Congress – to release the details of their funding for the 2015 elections. It hinged its demand on Section 1 of the FOI Act.

The Daily Trust newspaper, which had applied to the Nigerian National Petroleum Corporation for the details of its 2012 recruitment, was rebuffed. The NNPC adamantly claimed that as a statutory corporation, it was not bound by the FOI Act. Periodically, journalists and the public are being denied the access which the law provides. Why then is the government boasting about the FOI Act in the global arena?

But the provisions of the FOI Act are clear. In Section 4, the law mandates public institutions to respond within seven days after an application is received to make the information available to the applicant. Otherwise, in rejecting a request, the organisation has to inform the applicant the reasons for doing so. Strangely but not unexpectedly, our notoriously opaque and corrupt institutions have not been complying with these provisions.

Yet, there must be a way out to make the law work. CIMA says in the implementation of freedom of information law, it is sometimes said, is like a muscle. It only grows strong with use, and it atrophies with neglect. It is not also a law that a corrupt and discredited government will be comfortable with beyond the cheap political benefits it offers. Getting government agencies to open up won’t be easy. But the role of media and the public is critical. They must continue to test the law, exploring all legal options in dismantling the walls of resistance built around it. Andy Ogbolu, a FOI Act campaigner was right when he attributed the challenges to the slow wheels of justice and the resistance of corrupt government officials against the FOI Act. An independent and professional judiciary is also critical to the enforcement of an FOI law. The judiciary should act as an agent of social change and not an accomplice to political and bureaucratic resistance to it.

The rulings that shielded state governments from a valid national law should not be allowed to stand. The National Assembly should make its position known on this. But failing to do so, stakeholders should take the case to the Supreme Court for a decisive judicial pronouncement.

As the United States President, Barack Obama, did in 2009, Jonathan and the Attorney-General of the Federation should direct all federal agencies to set out guidelines for unobtrusive access to information in compliance with the Act.

The media must not yield to the temptation of totally discarding the laudable gains of investigative journalism.

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