By Ayode Longe and Edetaen Ojo
Longe is Programme Manager and Ojo is Executive Director of Media Rights Agenda. This report is one of the chapters in the State of RTI in Africa Report 2015. Reprinted with permission. Some, but not all, footnotes have been converted to hot links.
The Nigerian Freedom of Information (FOI) Act was four years old on May 28, 2015. It guarantees “the right of any person to access or request information” irrespective of anything contained in any other Act, law or regulation and in whatever form the information may be stored. The law applies to all arms of government, namely: the Executive, Legislature and Judiciary. It also applies to all agencies of government as well as companies and corporations wholly or partially owned by government or in which government has controlling shares.
It also covers private bodies carrying out performing public functions, providing public services or utilizing public funds.
Though it has not achieved the expected level of implementation both in terms of the level of citizens using the law to demand for records and information and how much public officials are responding to the demands that have so far been made, it is however picking up. The bulk of requests for information are being made by civil society organisations than ordinary citizens. Implementation of FOI Act
Implementation of the FOI Act
The implementation of the FOI Act has been quite poor both at the level of usage of the Law and in terms of the level of compliance by public institutions.
This situation is borne out by the latest report of the Attorney–General of the Federation, who is empowered by the Act to receive annual reports from all public institutions to which the Act applies and is required by the Law to submit a consolidated report to the National Assembly every year.
Although only a handful of public institutions comply with their reporting obligations under the Act, the Attorney General’s 2014 Annual Report on the Implementation of the Freedom of Information Act 2011 by public institutions, which was issued on March 30, 2015, shows that public institutions which submitted their reports for 2014 all received a total of just 312 requests in 2014. This is particularly disappointing, given that Nigeria has a population of about 170 million.
The Attorney General’s 2014 Annual Report also shows that only 60 out of over 800 federal government institutions submitted their compliance annual report for the year 2014. It should be noted, however, that this is an increase over the previous three years. Of the 60 public institutions that submitted their reports, only 33 of them actually submitted on or before February 1 as stipulated in the FOI Act while 27 institutions submitted after the deadline.
In his first report to the National Assembly in 2012, the Attorney–General of the Federation reported that only 16 public institutions submitted their reports for 2011. The figure increased slightly the following year to 32 and in the report issued March 30, 2014, it increased slightly again to 51 public institutions.
Public institutions more often deny requests for records and information than releasing them to the public.
This attitude is due to a number of factors including the entrenched culture of secrecy in public service; the bureaucratic nature of the nation’s civil service that requires officers to act only after being expressly permitted to do so by a higher authority when it comes to divulging information; and in order to cover wrong doings.
Corruption in Nigeria
Corruption has eaten deep into the social, economic and political fabrics of Nigeria such that with its enormous oil wealth there is a high disparity between the rich and the poor so much so that the middle class is being wiped out. There is a wide ratio of the rich to the poor. The latest Transparency International’s Corruption Perceptions Index (CPI) report, issued in December 2014, ranks Nigeria 136th out of the 175 countries surveyed, placing Nigeria, alongside five other countries, as the 39th most corrupt country in the world. It is Nigeria’s best CPI ranking in the last four years.
Status of ratification of regional instruments
Nigeria has acceded to most of the relevant regional and international instruments dealing with access to information. It signed the African Charter on Human and Peoples’ Rights on August 31, 1982 and ratified it on July 22, 1983. The Charter has subsequently been domesticated and now forms part of Nigerian Law. Nigeria is also a State Party to the Declaration of Principles on FOE in Africa, adopted by the African Commission on Human and Peoples’ Rights in October 2002 to elaborate on Article 9 of the African Charter on Human and Peoples’ Rights.
Nigeria has also signed the African Charter on Democracy, Elections and Governance but is yet to ratify the instrument. It similarly signed the African Charter on Values and Principles of Public Service and Administration but is yet to ratify it. Nigeria signed the African Convention on Preventing and Combating Corruption on December 16, 2003 and subsequently ratified it on September 26, 2006. It signed the African Youth Charter on July 2, 2007 and later ratified it on April 21, 2009.
Nigerian has not formally endorsed the African Platform on Access to Information Declaration, although she participated in the process leading to its adoption in Cape Town, South Africa, in September 2011.
Nigeria ratified the Treaty of the Economic Community of West African States on June 2, 1975. It also signed on December 21, 2001, Protocol A/SP1/12/01 on Democracy and Good Governance, a Supplementary to the Protocol of the ECOWAS Treaty on the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security. It similarly signed on January 16, 2008, Regulation MSC/ REG.1/01/08 on the ECOWAS Conflict Prevention Framework.
Nigeria is also a state party to the United Nations’ Universal Declaration of Human Rights. It ratified the International Covenant on Civil and Political Rights on July 29, 1993 and the United Nations Convention Against Corruption on June 9, 2003.
Challenges to implementation of the FOI Act
The Attorney General of the Federation in his 2014 report listed a number of challenges confronting the implementation of the law.
These include the general lack of funding for FOI activities across government institutions; general apathy among the operators of the Act worsened by high level of ignorance of its provisions and the obligations there under; late response to FOI requests as against the seven–day time limit provided by the law, due to lack of necessary framework for implementation; challenge of bottlenecks in some public institutions; lack of coordinated training of concerned public officials; and poor record keeping.
Media Rights Agenda (MRA) and the Africa Freedom of Information Centre (AFIC) have also identified a number of challenges militating against the implementation of the Act in a joint shadow report submitted to the 56th Ordinary Session of the African Commission on Human and Citizens’ Access to Information: A tool to Build Trust and Address Corruption Peoples’ Rights on “Nigeria’s 5th Periodic Country Report: 2011–2014 On the Implementation of the African Charter on Human and Peoples’ Rights in Nigeria”. The shadow report focused on Chapter five of the Nigerian Report which addresses how it has given effect to Article 9 of the African Charter on Human and Peoples Rights.
MRA and AFIC identified the following challenges:
The Federal Attorney–General has oversight responsibility of the Act but the Attorney–General is not an independent Information Commissioner. An Attorney–General in Nigeria is a political appointee; he/she combines with the office that of the Minister of Justice and so being saddled with the oversight responsibility for the implementation of the FOI Act adds a third office making his/her work, not only burdensome but susceptible to political interference.
In addition, the Nigerian FOI Act does not provide administrative redress mechanisms for requests that are denied. The law says requesters who are denied access to information may go to court to seek redress. Since it is very expensive for ordinary citizens with limited resources to pursue legal redress, the judicial review process is not an effective remedy in most cases where public institutions very often ignore requests.
The lack of proper record keeping as identified in the Attorney General’s report does not enhance quick and easy access to records and information in their custody to members of the public.
Conclusion
Virtually all the public institutions have failed to abide by their obligations set out in the Act including obligations to provide appropriate training for their officials on the public’s right of access to information or records held by government or public institutions; to record and keep every information about all their activities, personnel, operations, businesses, etc.; proactively publish certain types of information, even without anyone requesting them; and properly organize and maintain all information in their custody in a manner that facilitates public access to such information, among others.
The Freedom of information Act is obviously one of the tools that can be used to fight corruption if effectively implemented, as corruption and other abuses thrive in an environment of secrecy and ignorance.
Recommendations
The following recommendations are therefore proposed to improve the implementation of the Act:
- Nigeria should amend or repeal laws and policies that continue to hamper the access to information regime.
- The Government of Nigeria should make deliberate efforts to sensitize public institutions and officials at all levels of government about the rights of the public to access information held by public institutions. The sensitization should not be limited to FOI officials alone but should include all staff so that they are able to direct members of the public on how to locate the Freedom of Information Desks within their institutions. This will change the bureaucratic inertia and resistance to the access to information regime.
- The Nigerian Government should make specific budgetary provisions for public institutions to help in the proper discharge of their obligations under the FOI law.
- Public institutions should be made to abide by their obligation under the law to proactively publish certain types of information and make them available to the public. The proactive disclosure provisions in the Freedom of Information Act would reduce the burden on public institutions to process numerous individual requests for information from members of the public under the law.
- Public institutions should use electronic records management systems to enhance the implementation of the Freedom of Information Act. In particular, they should take advantage of the Internet, ICT and social media tools in receiving, processing and responding to requests for information as well as in fulfilling their proactive disclosure obligations, including using infographics to present and explain complex data.
- The Government on its part should put in place facilities and structures to ensure the availability and effectiveness of such tools.
- Enforcement of the Freedom of Information Act should not be confined to already over– burdened courts alone. There should be a system or mechanism for internal review and parties should have the option to appeal to an administrative body for review of decisions. Where necessary, access to courts should be simple, fast and cost–effective.
- The office of the Attorney General should be separated from that of the Minister of Justice and while the Minister of Justice should remain a political appointee, the Attorney General may continue to oversee the implementation of the FOI Act provided that the office is made independent and given the powers of an Information Commissioner.
- The oversight body should be adequately funded, staffed and equipped to ensure that it provides effective oversight in the implementation of the law and should not be subject to partisan political control.
- Staff in the office of the oversight body should be properly trained to ensure that they understand their functions and powers under the Law and to enhance their ability to perform their functions effectively.
- Civil society organizations should systematically monitor the oversight body and its operations to assess their level of independence and effective functioning and where public institutions are not in compliance, CSOs must develop and support public interest litigation to enable information requesters’ access information and justice.
- Citizens, civil society organizations and the media should systematically monitor compliance by public institutions with their proactive disclosure obligations under the FOI Act and whenever non–compliance is revealed by such monitoring, efforts should be made to apply remedies available in the law as well as lodging reports to the oversight body or mechanism and the National Assembly or relevant committees of the National Assembly given responsibility to oversee or supervise the implementation of the law.
- Monitoring the implementation of the FOI Act should be regular and systematic with the aim of generating reliable data on all aspects of the implementation of the law.
- Various stakeholder groups, particularly the media, civil society and government public enlightenment agencies, should undertake public enlightenment activities to ensure better public understanding of the provisions of the Freedom of Information Act and how to use it. Such communication endeavors should be sustained over time to achieve the desired impact.
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