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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