Tag: Ekiti State

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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Communique Issued at the end of the Capacity Enhancement Workshop on Advocacy Skills for CSOs and the Media

COMMUNIQUE ISSUED AT THE END OF THE CAPACITY ENHANCEMENT WORKSHOP ON ADVOCACY SKILLS FOR CSOs AND THE MEDIA ON FOI ACT IMPLEMENTATION IN THE SOUTHWEST AT RICHTON HOTEL & SUITES, ABEOKUTA FROM 11TH TO 12TH SEPTEMBER 2013

Preamble

The Capacity Enhancement Workshop on Advocacy Skills for CSOs and Media on FOI Act Implementation in the South West was organized by the South West FOIA Network and supported by the Democratic Governance for Development (DGD-II) Project and its international partners – the EU, DFID, CIDA and UNDP. A total of 43 organizations from all the states of the region participated in the workshop.

Objectives

The objectives of the workshop were to:

  • Strengthen the advocacy skills of the CSOs to engage the leadership of the three arms of government in the Southwest States in pressing them to concretely implement the provisions of the FOIA in their respective states, in line with the age-long progressive leaning of the region.

  • Provide a platform for generating discussions and relevant actions around FOIA implementation.
  • Devise strategies that the Network could deploy to engage the law-makers in the respective states in the region in drafting and passing acceptable state FOI laws consistent with the FOIA at the national level.
  • Identify with a view to partnering with relevant MDAs, the institutional bodies affected by the FOIA and development partners in ensuring unfettered FOIA implementation.

  • Increase the capacity and skills of CSOs and the Media to embark on relevant activities to increase the level of awareness on the FOIA among members of the public including those at the grassroots.

The workshop was attended by representatives of CSOs and Media in the South West geo-political zone. The keynote address was delivered by Mrs. Abimbola Ibironke Akeredolu, the Hon. Attorney General and Commissioner for Justice for Ogun State ably represented by the Director, Legal Drafting, Barrister Lanre Iyanda.

There were also lead presentations on: ‘Understanding the Role of  Public Officials  and CSOs in the Successful Implementation of the FOIA in Nigeria’; ‘Community Mobilisation for Development: Strategies for CSOs Use of FOI Act in Making Requests’; ‘Traditional and Social Media as Watchdogs of FOIA implementation’; ‘Understanding Essential Elements of Advocacy in Engaging the Authorities on FOI Act: Some Critical Tools for CSOs’; ‘Methods and Strategies for Monitoring the Implementation of Freedom of Information Act’ and ‘The Imperative of the Rule of Law as a Fulcrum for Promoting, Accessing, and Upholding the FOI Act within the Nigeria Context’

In addition, there were plenary and group discussions on: ‘Practical Application of Freedom of Information Act for CSOs/Media: The Right to Ask;’ ‘Tackling the Challenges of Freedom of Information Act in Nigeria’; ‘Producing a position paper or a briefing note;’ ‘Carrying out a media interview’ and ‘Organizing a press conference.’

Observations

After comprehensive discussions of the keynote address and the lead presentations, the participants observed that:

  1. If information is the oxygen of democracy, we find it objectionable that 27 months after the enactment of the FOIA, save for Ekiti State which enacted its FOI Law on 4th July 2011 and is currently in the final stage of passing a more robust amended version, other states in the southwest region i.e. Ogun, Osun, Ondo, Oyo and Lagos are yet to either enact State Level FOI Laws or concretely implement the FOIA.

  2. Many public institutions in the region and across the Federation are yet to deliver on their obligations under the Act, including the all important duty to proactively disclose certain categories of information stipulated under Section 2 (3) of the Act.
  3. There is also persisting low level awareness on the detailed provisions of the legislation amongst public officials and members of the public, which is militating against robust usage of the law by various stakeholders.
  4. We are concerned that despite the plethora of binding judicial decisions from several superior courts of record, including the apex court in the country, which establish amongst others, the legal doctrine of covering the field, while state like Oyo in the region still insist that the FOIA does not apply to them.
  5. Despite the fact that the 7th Assembly of the Lagos State Parliament, recently revived the process of enacting a State level FOI Law, in a process that dates back to the 6th Assembly, we are concerned about reports of what appears to be an official policy that gags public officials in the state from responding to FOI requests received from members of the public.
  6. While the Act requires private institutions, including CSOs providing public services, performing public functions or utilizing public funds to be proactive in their duty of disclosure in accordance with the provisions of FOIA, we are concerned that this is not being done currently, due largely to a lack of proper understanding of the provisions of the Act.
  7. There is growing concern that journalists in some states in the region, especially those in government owned media houses exhibit tendencies depicting bias, partisanship and lack of professionalism in their work, which negatively affects the FOI compliance process, especially since they are major stakeholders in the FOI project in these States.
  8. In consonance with the letters and spirit of the FOIA, it is believed that proactively disclosing publicly details of the agreement reached in 2009 between the Academic Staff Union of Universities (ASUU) and the Federal Government would have gone a long way to compel the Federal Government to comply with the said agreement and avert the current strike action that has resulted in the over two months closure of Federal and State Universities nationwide.
  9. Unless there is a subsisting appeal by the defendants in the case, the continuing disobedience of the order of mandamus made by the Federal High Court on the 10th of July 2013 directing the Clerks of the Senate and House of Representatives to furnish the plaintiff, with the salaries, allowances and Constituency funds of Senator Ehigie Uzamere representing Edo South Senatorial District and the member representing Ovia Federal Constituency in the House of Representatives Nosakhare Osahon, is symptomatic of the culture of gross impunity and flagrant disregard for the rule of law and court orders by public officials which should attract immediate punitive consequences for all such offenders.
  10. Strong concern was expressed by participants on the call by some serving public officials that the FOIA be amended even though empirical evidence shows that the Law has hardly been significantly implemented by all tiers of government in the country.

Resolutions

The workshop also resolved/recommended as follows:

  1. Members of this Network, CSOs and other stakeholders in the region should be mobilised to sustain focused advocacy with the three arms of government in their respective States to ensure compliance with the FOIA and where desired, enactment of the state level FoI Laws that meet the minimum benchmarks established  in the FOIA.
  2. Public institutions in the region and the nation at large should, as a matter of urgency put in place the requisite framework and machinery for delivering on their obligations under the Act, including the all important duty to proactively disclose certain categories of information stipulated under Section 2 (3) of the Act.
  3. In line with the provisions of Section 13 of the FOIA, governments in the region should immediately embark on robust capacity building programmes aimed at deepening the understanding of public officials on the provisions of the FOIA. Furthermore, such capacity building and sensitization programs should also be extended to members of the public resident in the region.
  4. Following existing judicial decisions from several superior courts of record, including the apex court in the country, establishing the legal doctrine of ‘covering the field,’ members of the Network call on state governments in the region to as a matter of urgency, uphold these existing judicial precedents by implementing the provisions of the FOIA forthwith in their respective states.
  5. The Network commends the 7th Assembly of the Lagos State Parliament for reviving the process of enacting a State level FOI Law in Lagos State and hopes that the process would be completed speedily. In furtherance to this positive development the Network also calls on the executive arm of government in the state to, as a matter of urgency clarify the allegation making the rounds of the existence of an official policy that prevents public officials in the state from responding to FOI requests received from members of the public. The Network also urges all arms of government in the state to commence the process of putting the requisite machinery in place for promoting the public’s right to know as enshrined in the FOIA.
  6. The Network will partner with other stakeholders in the region to carry out capacity building and sensitization programmes for private institutions, including CSOs who provide public services, perform public functions or utilize public funds to be proactive in their duty of disclosure in accordance with the provisions of FOIA.
  7. Members of the Network will carry out advocacy with journalists in some states in the region, especially those in government owned media houses to be unbiased, non-partisan and professional in their work, which also aids the process of FOI compliance in their respective states.
  8. The Network calls on the Academic Staff Union of Universities (ASUU) and the Federal Government to proactively and urgently disclose publicly details of the agreement reached in 2009 as part of the process of resolving once and for all the issues implicated in the current crises.
  9. There should be immediate punitive consequences for all public officials who disregard court orders enforcing compliance with FOIA.
  10. Participants distance themselves from the call by some serving public officials that the FOIA be amended despite the fact that it has not been substantially implemented in any shape or form. We reiterate that at this point in time, emphasis should be on implementing the FOIA, so that its benefits can be enjoyed by all and sundry, including government itself rather than a premature amendment that does no good to the legislation.
  11. In view of the growing recourse to the courts as the most viable forum for resolving FOIA disputes the Network calls on the National Judicial Institute as a matter of urgency and necessity to organise capacity building training programmes on FOIA for the judiciary at all levels. Furthermore, the Network also urges the judiciary as a key arm of government to immediately kick-start the process of complying with the FOIA in all ramifications.
  12. The Network will seek partnership with the Human Rights Committees of the branches of the Nigeria Bar Associations (NBA) in their respective states to provide pro bono services for resolving FOIA disputes.

Conclusion

The participants appreciate the support provided by the UNDP’s Democratic Governance for Development (DGD-II) and its international partners, the EC, DFID, CIDA to the Southwest FOIA Network for the success of the workshop and calls on them to kindly provide additional support to the Network as it embarks on the process of taking the FOIA implementation campaign in the Southwest zone further.

Signed on behalf of the participating Southwest CSOs:

  • Ayo Adebusoye                                 ………………………………………………………………………….
  • Rita Ilevbare                                      ………………………………………………………………………….
  • Ebofin Michael                                   ………………………………………………………………………….
  • Gbenga Ganzallo                               ………………………………………………………………………….
  • Jide Bamgbose                                   …………………………………………………………………………..
  • Moji Akinsanya                                  ………………………………………………………………………….
  • Tola Winjobi                                        ……………………………………………………………………………….(Zonal Coordinator)
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Welcome Address at the Capacity Enhancement Workshop on Advocacy Skills for CSOs and the Media

A WELCOME ADDRESS PRESENTED BY DR DAVID TOLA WINJOBI THE SOUTHWEST COORDINATOR OF SOUTHWEST FREEDOM OF INFORMATION ACT NETWORK AT THE CAPACITY ENHANCEMENT WORKSHOP ON ADVOCACY SKILLS FOR CSOs AND THE MEDIA ON FOI ACT IMPLEMENTATION IN THE SOUTHWEST AT RICHTON HOTEL & SUITES 62/64 EDUN ADILA STREET, IBARA HOUSING   ESTATE, ABEOKUTA FROM 10TH TO 13TH SEPTEMBER 2013

I heartily welcome all of you to this two–day Capacity Enhancement Training on Advocacy Skills for CSOs and the Media on FOI Act Implementation in the South-West States of Nigeria.

As we are all aware, the Freedom of Information Act (FOIA) was signed into law on the 28th of May, 2011 by President Goodluck E. Jonathan. It is the first law that empowers Nigerians with the right to access the records of public institutions (Ministries, Departments and Agencies) as well as the private sector, where they perform responsibilities of public nature. The Act which is a codification of the right to know and also a fundamental human right of every Nigerian citizen, grants all persons the legally enforceable right to access public held records. Moreover, the signing of the FOI Bill into law is an opportunity for the clearest demonstration ever of the power of civil society working together to influence public policy and initiate reform.

The preamble to the longish title of the Freedom of Information Act 2011 clearly sets out in a self-interpretative language the following as the objectives and thrust of the law as follows:

  • Making Public Records and Information freely available;
  • Provision for Public Access to Public Records and Information;
  • Protection of Serving Officers from adverse consequences of disclosing certain official information and;
  • Establishment of Procedures for the achievement of the above and related purposes.

The whole Act borders on the issue of the right of access of anyone to public record and information. Section 2(1) of the Act categorically declares and establishes the right of any person to access or request information “which is in the custody or possession of any public official, agency or institution howsoever described”, whether such information is in a written form or otherwise.

What is more to the above unprecedented right is the express provision in the Act at Section2(2) that an applicant, that is, any person seeking access to public record and information, need not demonstrate any specific interest in the information being applied for. This singular ancillary provision is most laudable having regard to the fact that before the Act, public institutions, offices and government agencies had effectively used the ground of lack of or insufficient interest as a Carte Blanche to refuse any application for information in the custody of government offices or officials.

Current Situation of the Act in Nigeria:

Since the act was signed into law, there is relatively low level of awareness of the FOIA among members of the public in Nigeria and especially in the southwest geo-political zone. The situation is worse in the northeast geopolitical zone for obvious reasons as many public servants are not aware of the Act while those that are aware do not know the import of the Act. Apart from Ekiti State, no other State in the Southwest has enacted a State level FOI Law. Many public institutions and officials are yet to fulfill their obligation under Section 13 of the FOI Act, requiring them to build the capacity of their workforce to ensure compliance with the provisions of the Act. The free flow of essential public information as stipulated by the FoI Act is being hampered by the lack of official websites by some public institutions and lack of regular update of information by those who have.

Most private organizations including CSOs utilizing public funds, performing public functions or providing public services, erroneously believe that they are exempted from the ambit of the application of the FOIA.  Furthermore and worse still, some state governments also incorrectly opine that they are not bound by the provisions of the FOI Act. A bad example is that of the Attorney General for Oyo State who in April said that his State (Oyo) was not bound by the Act. Efforts were made to seek audience with him so as to educate him that the law of the federal republic takes precedence over those enacted by any state while each state is bound by the federal law.

Rationale and Objectives for the Workshop:

Apart from apathy from the CSOs, there is also skepticism among some of them about the safety and security of whistleblowers including the media. Though many CSOs are aware of the Act, many lack the skill needed as whistle-blowers to engage the public officials and the legislators on the need to implement the Act in their respective states.

The need to create public awareness of what Freedom of Information is and its connection to the daily lives of stakeholders is paramount. Media and the use of ICT bear much relevance in this regard. People need to see it being done and not to see what ought to be done. The demands to know and the knowledge of how to apply the information obtained in solving social, economic and political problems facing different people at different stages of life need to be addressed.

The overall objective of the Southwest FOIA Network is to contribute to the  promotion of freedom of speech and human rights, deepen democratic accountability and strengthen the rule of law in Nigeria. The specific objectives of the workshop, however, are to:

  • Strengthen the advocacy skills of the CSOs to lobby the law-makers in their respective states in drafting and passing acceptable state FOI laws consistent with the FOIA at the national level.
  • Provide a platform for generating discussions and relevant actions around FOIA implementation.
  • Identify with a view to partnering with relevant MDAs, the institutional bodies affected by the freedom of information law and development partners in ensuring unfettered FOIA implementation.
  • Increase the capacity and skills of CSOs and the Media to embark on relevant activities to increase the level of awareness on the FOI Act among members of the public including those at the grassroots.

I would like to use this medium to appeal to the federal government of Nigeria to, as a matter of urgency, declare a sincere state of emergency on our educational system. In view of the current impasse between ASUU and the federal government, the latter should accede to the request of the former so that our children could go back to school immediately. The federal government should desist from violating the provisions of the Tertiary Education Trust Fund (TETFund) Act 2011 as it is evident that NUC has neglected its regulatory function by serving as an emergency contractor, constituting itself into a tenders board for the universities and colleges of education, and administering hostel development grant.

I also implore the media and CSOs to FOI the Federal Revenue Mobilisation Allocation and Fiscal Commission to make available the details of the salaries and emoluments (including constituency allocations) of our federal lawmakers whose controversial jumbo pay package has been the highest in the whole world. While our legislators are living in opulence, over 70 per cent of Nigerians are suffering from poverty, about 5 million youths pass out from higher institutions without jobs while over 10 million children are out of school. Paradoxically, Nigeria is rich yet its people are poor. Poverty, hunger, starvation and preventable diseases are staring the critical masses of this country in the face as our leaders lack fiscal discipline while money that would have been used for development is being leaked into private pockets.

As CSOs and the media, we need to use FOIA to demand accountability from our public officials. We need to know how our resources are being allocated or spent; it is our right to ask and it is their responsibility to answer. We need to FOI MDAs, procurement and award of contracts; revenue allocation; environment on ecological fund; constituency allowances; infrastructural  development;  housing; agriculture; the Public Complaints Commission; MDGs Projects; Good Governance Team etc.

I wish us all successful deliberations.

Thank you for listening.

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