Understanding the Role of Public Officers and CSOs in the Successful Implementation of the FOIA in Nigeria

United Nations Human Rights Council logo.

United Nations Human Rights Council logo. (Photo credit: Wikipedia)

INTRODUCTION

The Freedom of Information Act, 2011 in its explanatory memorandum, makes public records and information more freely available, provide for public access to 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 for disclosing certain kinds of official information without authorization and establish procedure for the achievement of those purposes. What this means, is that the act creates the right to access to information in the custody of or under the control of public institutions or authorities and establishes a legal regime for the exercise and/or enforcement of this right.

A Freedom of Information Act cannot just work on the basis of requests by individual members of the public. This is an important part of public access to information but it is not the only part. The authorities need to take active steps to disseminate certain key types of information to the public. This way, the public as a whole will be well informed without having to make requests for information. But, in addition, members of the public who wish to request specific information cannot know with any certainty what information public institutions hold, so they do not know what to ask for. Public institutions are all authorities whether executive, legislative or judicial agencies, ministries, and extra-ministerial departments of the government, together with all corporations established by law and all companies in which government has a controlling interest, and private companies utilizing public funds, providing public services or performing public function. It is therefore essential that all public bodies should be required to publish certain key information about what they do. This includes: how the body functions, its objectives, budget, audited accounts, internal structures and staff complement.

REASONS FOR FREEDOM OF INFORMATION

  •  Less corruption:Corruption thrives on secrecy. Individuals and institutions become corrupt when there is no public scrutiny of what they do. The more that they operate in the public gaze the less corrupt (and more efficient) they are likely to become.
  • Freedom from hunger: This may seem like a strange thing to put on this list. Yet, the Nobel prize-winning economist Amartya Sen has argued that famines do not happen in countries with a free press. His argument is that famines are caused by the inaction of governments. Governments do not dare to be inactive on such an important issue when they are subject to constant media scrutiny.
  • A healthier society: This may also seem a strange benefit from freedom of information. Yet, consider, for example, the greatest public health crisis of our time – the HIV-AIDS pandemic. In its early years, HIV infection was able to spread so rapidly because of the lack of publicly available information about the virus and how to avoid it. Countries that had effective public information programmes – such as Uganda, which was once the worst affected in the world – have been able to turn the tide of HIV infection. More recently, the Chinese government’s failure to be open about the gravity of the outbreak of Severe Acute Respiratory Syndrome (SARS) contributed to the spread of the condition not only within the country but in the outside world. Its belated admission of the seriousness of the SARS outbreak immediately made it easier for the public health authorities to bring it under control.
  • A cleaner environment: Many of the decisions taken that cause damage to the environment are made behind closed doors. Most of these decisions could be avoided if all planning decisions had to be accompanied by an environmental impact study – which in turn should be made available to the public.
  • Respect for human rights: Human rights violations, like corruption, flourish in a climate of secrecy. Some of the worst human rights violations, such as torture, are almost by definition something that takes place behind closed doors. An open government – including, for example, publication of investigations into allegations of human rights violations – is far more likely to result in respect for human rights.
  • Respect for privacy: Without freedom of information there is nothing to guarantee that governments (and other powerful bodies) will not amass vast quantities of information about individuals. If the individual always has the right to see what information is held about them, their right to privacy is more likely to be respected. In addition, people have a right to make sure that the information held about them is accurate. If this is not the case, wrong and potentially damaging decisions could be made.
  • A more secure society: This is possibly the most controversial item on this list. The argument in favour of official secrecy is that this is necessary in order to safeguard “national security”. Yet there is a much better argument for saying that public scrutiny of decisions related to defence and intelligence is likely to make for a more secure society. For example, many countries have a long experience of unaccountable intelligence services that direct their activities against domestic political opponents rather than genuine threats to national security. Freedom of information can help to curb such behaviour. Secrecy can lead to corruption and inefficiency in the security services, which in turn undermines security.
  • More effective democracy: Freedom of information is crucial for effective democracy. How can the electorate make an informed choice if they are denied information about what the government – their government – has been doing? Political leaders are more likely to act in accordance with the wishes of the electorate if they know that their actions can be constantly scrutinised by the public.

WHAT ARE THE ROLES OF PUBLIC OFFICERS?

  • SECTION 3 –Head of institutions shall publish in the Federal gazette a description of the organisation and responsibilities of the institution including details of programme and functions of each division, branch and department etc
  • SECTION 31-Attorney-General & MIN. OF JUSTICE – shall encourage govts and institutions to comply. 3&7
  • Court should be alive to its responsibily.
  • Heads of institutions should constitute FOIA committees, appoint desk officers and train them.
  • Institutions must be proactive by displaying information to the public on the internet, newspapers etc.

ROLES

  •  Make the Act work by adding value. Meet requesters with politeness

The role of public officials in a democracy is to serve the public. This is why they are called public or civil servants. You should meet every person who requests information with this principle of serving the public in mind. You should treat all requesters as equal, and meet them with politeness.

  • Advise and assist them when making their request

You should advise and assist them in making their request, taking into consideration that the requester may not know what information exactly to look for, where to look for it, or how to file a request. Provision should be made to ensure full access to information for certain groups, for example those who cannot read or write, those who do not speak the language of the record, or those who suffer from disabilities such as blindness. In such cases you should help the customer to put their request into writing, include your name and position in the body, and give a copy to the person who made the request. User-friendly systems have been established in Denmark and the Netherlands where applications can be made verbally. The Belgian legislation gives requesters the right to have documents explained to them.

  • Direct them to where the information can be found

If the information requested is already publicly available, for example on an internet site, in information bulletins or in an annual report, you should indicate to the requester where he or she can find the information. If you do not hold the information the requester is looking for, you should direct him or her to the correct person or body where the information can be found.

  • Process requests rapidly and fairly

Requests for information should be processed rapidly and fairly within the time limits prescribed by law. The reasons for any refusal of information should be given to the requester with a comprehensive written explanation.

  • Inform requesters of their rights

The freedom of Information Act made an independent review of any refusals through court of law. In case you decide not to disclose the requested information, you should inform the requester that he or she can appeal this decision by applying to court.

  • You may refuse vexatious requests

Notwithstanding, it is legitimate for public bodies to refuse frivolous or vexatious requests.

  • Keep in touch with requesters.

Keep the requester informed of the progress of their request, if the request is such that processing it will take some time. This will be the case for example when it involves a large amount of information or numerous documents.

So, what do you need to do when you receive a request? Here is a Checklist:

  • Provide the requester with a receipt documenting the request;

  • Provide the requester with a reference number for the request to make it easier to trace the request later on;
  • Explain the procedure of how the request will be handled (for this purpose, the public body could have a leaflet explaining the standard procedure for handling information requests);
  • Keep the person informed of the progress of their request, especially if it involves a large amount of information which will take time to find.

The Role of CSO’s

The Act provides people the right to access government-held information and requires systems to be set up for ensuring transparent and accountable government. The purpose of the Act is to create an informed citizenry capable of participating in the decision-making processes of government at all levels. In this context, the right to information becomes a key tool for ensuring that public authorities more effectively meet their goal of promoting participation and entrenching accountable government at the grassroots level.

Lack of awareness and training and public education are the main reasons why people find it difficult to access information from various government institutions. Civil society organisation (CSOs), especially those working at the grassroots in rural areas need to be aware about this landmark legislation in our country. More importantly they have the specific responsibility to spread awareness about this Act amongst the people and monitor its implementation.

The main roles of the CSOs towards the successful implementation of the FOI Act are;

  • Advocacy

Advocacy is getting the support of key stakeholders

  • Generating awareness

Awareness generation and public

Education

  • Print handbills, posters and pamphlets on FOIA for wide-scale distribution.

  • Spread awareness about FOIA through wall writing, group discussions, pamphlet distribution, rallies, street plays, awareness camps etc.
  • Inform people about governments duty to proactively disclose information;
  • Share successful case studies on use of FOIA by ordinary citizens in order to enable people to appreciate its value and importance;

  • Building capacity among the community on FOIA.
Capacity Building
  • Organise FOIA workshops seminars, inter-face at wards, local govt, town halls, CDA, youth org., States and Federal level with the purpose of increasing awareness and knowledge about FOIA.
  • Organise FOIA workshops for CSOs, media, government officials, women organisations, professional organisations, market men and women, traditional institutions members of Self Help Groups,  retired government officials, teachers, media.
  •  Using provisions under the act in monitoring public service delivery

It must be borne in mind that awareness creation in citizen and capacity building of government officials ned to be done side by side in other to strenghten the demand side for accessing information as well as the supply side for giving information. Kudos to the organisers and sponsors. Hope sponsors will continue to give support to CSOs to continue the momentum tha will be generated.

Using Provisions Under The Act in Monitoring Public Service Delivery

Participation in governance is at the heart of any successful democracy. As citizens, we need to participate not only at the time of elections but on a day-to-day basis – when decisions on policy, laws and schemes are being made and projects and activities are being implemented. Public involvement not only enhances the quality of governance but also promotes transparency and accountability in government functioning. But in reality how can citizens take part in governance? How can the public understand how decisions are being made? How can ordinary people find out how tax money is being spent or if public schemes are being properly run or whether the government is acting honestly and fairly when it makes decisions? How can government servants be made answerable to the public they are supposed to serve? Social audit?

What is Social Audit?

Social Audit is an independent and participatory evaluation of the performance of a public agency or a programme or scheme. It is an instrument of social accountability whereby an in-depth scrutiny and analysis of working of a public authority vis-à-vis its social responsibility can be undertaken. It also enables the Civil Society to access whether a public authority lives up to the shared values and objectives it is committed to. It provides an assessment of the impact of public institutions non-financial objectives through systematic and regular monitoring based on the views of its stakeholders.

Benefits of Social Audit

The primary benefits of Social Audit are:

  1. Complete transparency: In the process of administration and decision-making, Social Audit ensures an obligation on part the Government to provide full access to all relevant information.

  2. Rights Based Entitlement: Social Audit propagates rights-based entitlements for all the affected persons (and not just their representatives) to participate in the process of decision making and validation.
  3. Informed Consent: Social Audit provides for the right of the affected persons to give informed consent, as a group or as individuals, as appropriate.
  4. Immediate Answerability: Social Audit enables swift and prompt response by the elected representatives and Government functionaries, on their relevant actions or inactions, to the concerned people.
  5. Speedy Redress of Grievances:  Social Audit ensures speedy redress of grievances of the affected people by the public agencies.

Distinguished ladies and gentlemen, I want to appreciate the efforts of the organisers for putting up this programme. I urge CSOs, Media and NOA to collaborate and make FOIA work well in Nigeria. I salute the Undp and others for sponsoring the event. Finally, please let us ‘Do the right thing to  transform Nigeria’.

REFERENCES

1. Freedom of Information Act 2011

2. Sohini Paul; Roleof civil Society  Organisatios in Implementation of RTI in India

3. ATI, Kohima; Right to Information Act, 2005 and the Role of NGOs, CSOs RTI Cell

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The Imperative of the Rule of law as a Fulcrum for Promoting, Accessing and Upholding the FOIA within Nigeria

presented by A. A. Adewole Esq.

Going by available statistics published by the United Nations, about 90 countries the world over have this type of law operating in their respective domains. The FOI Act Nigeria was signed into law on 28th March, 2011 by President Goodluck Jonathan. Lagos and Ekiti States have domesticated the law albeit with slight variations to suit their local situations.

As discernible from the long title of the Act, it is “An Act to make Public records and Information freely available, provide for public access to 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 for disclosing certain official information and establish procedures for the achievement of those purposes and for related purposes…”

From the coinage of the topic of this presentation, it can be deduced that the essence is to properly place the “rule of law” as a sine qua non for a successful operation/ application of the Freedom of Information Act and its local variants (as adopted and enacted by some states in the Federation) in our country. But before delving into the topic proper, it is necessary to deal with the issue as to whether or not the F. O. I Act is of general application in all the component states of Nigeria. I will say that the position on this as at today is still fluid but it suffices at this point to mention that some states including Lagos and Ekiti have enacted their own versions of it.

Before considering how rule of law will perform the three identified functions of Promoting, Accessing and Upholding the Freedom of Information Act, there is the need to put the term “rule of law” in proper perspective. It was coined by A. V. Dicey a renowned British Jurist in 19th century. Several connotations and denotations have been given to the term.

Two of them are as follows:

  • “…influence and authority of law within society, especially as a constraint upon behavior of government officials”.
  • “…implies that every citizen is subject to the law”.

The modern conception of rule of law developed as a concept distinct from “rule of man”. It involves a system of governance based on non-arbitrary rules as opposed to one based on the power and wish of the absolute ruler.

In its simplest form, the rule of law principle posits that everybody is equal before the law, the governed as well as the governor.

            At this juncture, it is apposite to pause and ask, what actually is the relationship/nexus between the principles of rule of law and the Freedom of Information Act?

            According to Doctor Mack Cooray in his article titled the “rule of law”, following form Professor A. V. Dicey’s writing about rule of law certain essential characteristics have emerged as its components. They are:

  1. Supremacy of law which means that all persons (individuals and government) are subject to law.
  2. Concept of Justice- which emphasizes interpersonal adjudication, law based on standards and the importance of procedures.
  3. Restriction on the exercise of discretionary power.
  4. Doctrine of judicial precedent.
  5. Common law methodology
  6. Legislation should be prospective and not retrospective.
  7. An independent judiciary
  8. Exercise by Parliament of legislative power and restrictions of exercise of legislative power by the executive.
  9. An underlying moral basis for law.

In the same vein, a group known as the World Justice Project has indentified four universal principles that must be upheld under rule of law. These are:

  1. Government and its officials and agents as well as individuals and private entities are accountable under the law.

  2. The laws are clear, publicized, stable and just are applied evenly, and protect fundamental rights, including the security of persons and property.
  3. The process by which the laws are erected, administered and enforced is accessible, fair and efficient.
  4. Justice is delivered timely by competent, ethical and independent representatives and neutrals who are of sufficient number, have adequate resources and reflect the makeup of the communities.

Those four cardinal principles of the world justice project appears to me to be a collapse of the nine components distilled form A. V. Dicey’s writing. They can be said to encapsulate all that are required for the rule of law to prevail in a society.

As revealed by the long title to the Freedom of Information Act, the purpose of that law is to give Nigerians access to information on acts and activities of government, also to protect public sector workers who in the course of their employment or tenure of office reveal certain facts which revelation hitherto will amount to an offence from being sanctioned for such revelation once it is shown that it was done in public interest. People who act in such way are now referred to as “whistle blowers”. The F. O. I Act has thirty sections in which it attempts to cover the field on all perceived areas needed to ensure that the intendment of the law is achieved. It covers issues such as right of access to public records (section 2); recording and keeping of information by public institution (section 3); request for access to records and how such request is processed sections (4,5,6,7); what to do where access is refused (section 8); grounds for denying a request (sections 12,13,15,16,17,18,20); right to challenge a denial in court (section 21); procedure to be adopted by the court in treating such matters (sections 22,23,24,25, & 26); materials exempted under the act (section 27); protection of an officers of public institution or any person acting on behalf of such institution from civil or criminal liability from disclosing requested information, also protection of a public officer who discloses information without authorization in given circumstances and also protection of the receiver of such information (section 28); among others. Without gainsay, the F. O. I Act contains quite a number of salutary provisions which if properly and sincerely applied will go a long way in the quest to tame corruption in our society. The Act has also responded albeit in part to the clamour to make the fundamental objectives and Directive Principles of State Policy as contained in Chapter II of the 1999 Constitution of the Federal Republic of Nigeria justiciable. This is because the F. O. I Act affords Nigerians opportunity to participate in governance as provided for under section 14(2) (c) of the 1999 constitution.

All said and done, the F. O. I. Act is in itself a microcosm of what the rule of law concept is all about in that it seeks to ensure that government, its employees, appointees elected officers as well as agents operate within the ambit of our laws and the Act also empowers the citizens as watch dogs for the said purpose. But laudable as the Act may be it is not yet Uhuru until its provisions are tested and bounced against real life situations vis-à-vis the well established tenets of the rule of law that we can then talk about its having achieved its purpose. To facilitate this, I want to make the following suggestions:

  1. Public Officers (career and political) must readily play their roles as enshrined in the Act. There is the need for a thorough re-orientation of the said officers in this regard considering the situation prior to the enactment of the F. O. I Act.

  2. Government at all levels too must remove all impediments that can hinder the smooth operation of the Act and show sincerely.
  3. The Judiciary must also be ready and exhibit capacity to play its role in a positive and most effective manner in adjudicating on issues that arise from the operation of the act.
  4. The citizenry too must be vigilant and be ready to seize the initiative in making the Act work. Knowing that a vast majority of the populate lack the wherewithal to do this, the Media and the Civil Society organizations amongst others are expected to be pro-active and be the vanguards in this area.
  5. Where the need arises to have a review of some of the provisions of the Act, the legislature should respond promptly and do the needful.
  6. There is also the need to publicize and simplify the provisions of the Act for quick and easy understanding of the masses.
  7. Access to the court where judicial review becomes necessary must be made easy and affordable for the generality of the populace.

The above suggestions of mine are by no means exhaustive. But I consider them the minimum that must be met in order that the F. O. I. Act can be made to work.

I thank you all for your attention.

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