ANALYSIS OF THE RIGHT OF ACCESS TO INFORMATION UNDER NIGERIAN LAW
1.1 BACKGROUND OF THE STUDY
The Freedom of Information Act (or the “FoI Act”) is Nigeria‟s major legislative response to redress the
balance of official secrecy, elitism and non-accountable government. It guarantees a “Right to Know” or a right of access to records and informationin the custody of public institutions in Nigeria; set standards for what the government could protect from access, and fastened a system of judicial review of denial of access to information.
In line with the requirements of the FoI Act, the Attorney-General of the Federation, who is vested with the statutory mandate to coordinate compliance with the FoI Act by public institutions, has issued an advisory and a guidance note to help public institutions understand their obligations and promote good practice of the FoI Act regime. The advisory is titled the “Attorney General‟s Memorandum on the Reporting Requirements under S.29 of the FoI Act” (the “FoI Memorandum”) and requires public institutions to organise their records in a manner that makes them accessible to the public and to publish information using multimedia formats (i.e. print, electronic and online). The “Guidelines on the Implementation of the Freedom of Information Act, 2011” (the “FoI Guidelines”) seeks to aid clearer understanding, application and implementation of the FoI Act by public institutions.
The FoI Act was achieved at the end of nearly two decades of public advocacy and exactly one hundred years after the Official Secrets Act was first introduced into Nigeria as a colonial Order-in-Council. The idea of a freedom of information law for Nigeria was conceived in 1993 by three different organisations working independently of each other. The organisations, Media Rights Agenda (MRA), Civil Liberties Organisation (CLO) and the Nigeria Union of Journalists (NUJ), subsequently agreed to work together on a campaign for the enactment of a freedom of information Act. The objective of the campaign was to lay down, as a legal principle, the right of access to documents and information in the custody of the government or its officials and agencies as a necessary corollary to the guarantee of freedom of expression.
A bill for a freedom of information act was first submitted to the 4th National Assembly in 1999. The 1st and 2nd reading of the bill at the House of Representatives took place on 22 February and 13 March 2000 respectively. The House of Representatives Committee on Information recommended the passage of the bill and the House directed that a public hearing on the bill be held on the 3 and 4October 2001. However, the bill could not be passed before the 4th National Assembly was dissolved in 2003.
The bill was represented to the 5th National Assembly, in June 2003 and a 9 member joint committee of the National Assembly was set up to review the bill . The joint committee came up with strong recommendations and submitted its report to the National Assembly. By August 2004, the House of Representatives passed the bill and subsequently forwarded same to the Senate. The bill, having been stalled in the Senate for two years, was eventually passed in November, 2006 with a consensus vote. The two Legislative Chambers then raised a harmonisation committee to address differences in the two bills, before it was sent to the President for assent.
Part of the raison d’etire offered by the Senate as to why the bill was delayed, were issues relating to national security. This was notwithstanding the fact that the bill in the main provided safeguards “against unrestricted and unauthorised access to documents of institutions as it relates to national security or ongoing investigations by the Police or other law enforcement agencies”. Thus, information that would be injurious to national defence and conduct of foreign policy were excluded from the bill.
The bill was sent to former President Olusegun Obasanjo on 23 March 2007, for assent. However, the President refused his assent and vetoed the bill. His refusal was based on two reasons. Firstly, he was opposed to the title of the bill i.e. „Freedom of Information‟ and stated that it should have been titled „Right to Information‟. He argued that the title of the bill is very important as “we can only talk of right to information and not freedom of information and that the idea of „freedom of information‟ was simply imported from somewhere…” It is hereby posited that this is a case of “distinction without a difference” because what is of importance is not the title of a law but whether the law indeed confers a positive and enforceable right.
Secondly, President Obasanjo disagreed with S.13(1) of the Bill which provides that: “The head of government or a public institution may refuse to disclose any record, the disclosure of which may be injurious to the conduct of international affairs or the defence of the Federal Republic of Nigeria.” He argued that the proposed bill only excluded public access to records which may be injurious to the defence of Nigeria but did not exclude records which may be injurious to the “security” of Nigeria, as according to him, „defence‟ and „security‟ mean different things. Obasanjo further argued that S.13(2) of the Bill which provides „that the courts may override the refusal by the head of the government or public institution to disclose any information of which another head of state may tell him in confidence‟ meant that he could be compelled by the courts to disclose any information another head of state may tell him in confidence. Unfortunately, the 5th National Assembly could not garner the two-thirds majority required to override the President‟s veto.
On the swearing in of the 6th National Assembly in 2007, the bill was re-submitted for consideration of the National Assembly. The brouhaha triggered in the House of Representatives by the presentation of the bill was revealing. Specifically, on 28 April 2008, uproarious scenes were recorded in the House of Representatives as the bill was tabled, with most members agitatedly, denouncing the proposed law and shouting down its sponsors. The bill was listed on the order paper of the legislative day, but as was the case on six previous occasions, the legislators refused to accept it for consideration. On 29 May 2008 the bill was thrown out.17
Notwithstanding the opposition aforesaid, the bill was returned to both chambers of the 6th National
Assembly and eventually passed on 24 May 2011. President GoodluckJonathan signed the bill into law on 28 May
2011 barely 3 days of its passage by the National Assembly.
In an attempt to create awareness among its public servants, the Federal Government recently set up an inter-ministerial committee headed by the Permanent Secretary, Bureau of Public Service Reforms to aid the free flow and accessibility of information in the public service. Inaugurating the committee, the Head of Service of the Federation noted that all public institutions were obliged to keep records of their activities.
The Head of Service who was presented by the Permanent Secretary, Establishment and Record22 said the implementation committee would allay fears and speculations expressed that the public service is yet to put in place structures that should aid effective implementation of the FoI Act.