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ANALYSIS OF THE RIGHT OF ACCESS TO INFORMATION UNDER NIGERIAN LAW

 

CHAPTER ONE

INTRODUCTION

1.1. Background of the Study

Human beings are free to access relevant information that may lead to his development, peace and progress. This is enshrined in most constitution of sovereign states. In Nigeria, it is a fundamental human right, that’s inalienable. The FOI refers to an individual’s right to access information that is in custody by the state. It is the ability of individuals or citizens of a country to have freedom to access information enabled by legislation, (Omotayo, 2014).

Freedom of information is a vital component of the international guarantee of freedom of expression which entails the right to seek and receive, also as to impart information and ideas, (Obiaraeri, 2011). The right to information is a basic human right enshrined in Section 39 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended which provides that’ every individual shall be entitled to freedom of expression as well as freedom to hold opinions and to receive and impart ideas and information with no interference’ (The Constitution of the Federal Republic of Nigeria, 1999).

Likewise, Article 19 of the Universal Declarations of Human Rights provides that; every individual has the right to freedom of opinion and expression, this right includes freedom to hold opinions with no interference and to seek, receive and impart information and ideas via any media and in spite of frontiers, (The Universal Declaration of Human Rights (UDHR).

Article 9 of the African Charter on Human and Peoples Rights, provides that, each person shall have the right to receive information; (2) each person shall have the right to convey opinions within the Law. The African Commission on Human and People’s Rights’ adopted a Declaration of Principles on Freedom of Expression in Africa, stating, public or government bodies hold information not for themselves however as custodians of the public good and each person has a right to access this information, subject only to clearly defined rules established by law, (Edetaen, 2017).

Nigeria surfaced from colonialism in 1960. While colonized, Nigerians suffered press freedom infractions from the colonial authorities. According to Momoh (2002), restraining media laws could be said to have really taken roots in 1903 with the passing of Newspaper Ordinance of that year and the Sedition Ordinance of 1909. As Momoh (2002) recalled, perhaps the most disreputable press gag law was the 1917 Act. The author noted that, it brought together previous colonial laws.

The passing of the Freedom of Information Act (“FIA” or “the Act”) can be linked to the evolution of press freedom in Nigeria. In 1859, the first newspaper in Nigeria was created and it was called Iwe Irohin. The paper existed from 1859 to 1867 and afterward a number of newspapers begun to appeared in the late 1880s. However, in the beginning of 1900s, the British Colonial Government started feeling uncomfortable with the press and started passing laws that were unsympathetic for the operation of the press and finding ways of checking the excesses of the press particularly towards the colonial regime. Omu (1978), stated that, the heightened nature of press criticism which marked political antagonism from the last days of the 19th century to the eve of the First World War couldn’t but annoy the colonial regime, (Omu, 1978). In view of the above, the colonial administration passed a law called the Newspaper Ordinance of 1903 subsequently Seditious Offences Ordinance of 1909, and many more.

On the other hand, the Nigerian Press began to fight for press freedom as rightly observed that a good number of the press laws enacted in Nigeria from the era of the colonial administration were obnoxious impositions by individuals in power to protect them from the lawful searchlight of a dutiful and patriotic press. Incidentally, the fight for freedom of press in Nigeria was tied to the fight for political independence, (Akinleye & Okoye, 2003). The early newspapers in Nigeria used their editorials and columns to campaign inexorably for political freedom. According to Daramola (2013) as far back as 1881, when the Colony of Lagos was being governed from Sierra-Leon, the fight for freedom from colonial masters had begun to appear in newspaper editorials, (Daramola, 2013). For instance, the Lagos Times and Gold Coast Colony Advertiser of March 9, 1881 stated that, we are not yelling for instantaneous independence, however it should always be borne in mind that the current order of things won’t last till eternity, that a time will come when the colonies on the West Coast will be left to control their own internal and external affairs, (Daramola, 2013).

However, these newspaper editorials sustained until when Nigeria was given her independence on October 1, 1960. Unsurprisingly, there were provisions for freedom of expression in the Independence Constitution, however there wasn’t specific provision granting freedom of the press. The fight to have unambiguous constitutional provisions assuring freedom of press was still on. The Nigerian press persists to yell for the freedom of press and the Freedom of Information Bill despite the fact that it didn’t receive the approval of past regime of President Obasanjo until 28th May, 2011 when it was signed into law by the President Goodluck Jonathan regime, (Freedom of Information Act, 2011).

For the first time after Nigeria’s independence in 1960, freedom of information through the freedom of expression became a constitutional right, as it was integrated into the Independence Constitution of 1960, (Section 24 of the Constitution of the Federal Republic of Nigeria, 1999). However, there were still restrictions forced by some colonial laws like the Official Secrets Act of 1962, which had not been abolished as at independence. With the dawn of the military, Nigeria went a step backwards, as the Military suspended a number of rights as well as the freedom of expression with the promulgation of various Decrees.

One fundamental issue that affects the Freedom of Information Act is some existing laws or decrees which are still in operation. For instance, the Evidence Act of 2011, the Public Complaints Commission Act of 2004, the National Securities Agencies Act of 1986, all have some sections that are aimed at restraining the free flow of information in the country. All these laws may affect the effectiveness of the Freedom of Information Act in the long run as they are loopholes that can be utilized to evade obligations under the Freedom of Information Act. A number of mischievous public officers may as well use such laws or decrees for their self-centered purposes, (Ayodele, 2016).

Access to government records and information is a vital necessity for modern government. Access aids public knowledge and discussion. It gives a vital guard against abuses, mismanagement and corruption. It can as well be useful to governments themselves, openness and transparency in the decision making process can aid in developing citizen trust in government actions and maintaining a civil and democratic society, (Ojebode, 2011).

Governments around the world are gradually making more information concerning their activities accessible. Over 100 countries around the globe have adopted comprehensive Freedom of Information Acts to aid access to records held by government or public bodies and over 40 more have pending efforts. While FOI acts have been around for a number of centuries, over half of the FOI laws have been adopted in just the past ten years. The growth in transparency is in response to demands by civil society organizations, the media and international lenders, (Goitom, 2013)

This law is seen to be a victory for democracy. With the FOI law, countries around the world especially Nigerians now have essential tools to uncover facts corruption, and hold officials and institutions accountable and responsible. The FOI law will deeply change how government works in around the world, and in Nigeria it can be used as oxygen of Information and knowledge to breathe life into governance. It will no longer be into governance, it will no longer be business as usual, (Sahara Reporters, 2011). The FOI law is a testament to the staying power of the civil community, indicating how devoted groups can work collectively to make sure laws which support the right of the individual.

With the (FOI) bill becoming law, there is no more hiding place for institutions such as NNPC, Nigerians will now have comprehensive details of the offshore companies and offshore secret accounts they run. The public will now have access to know how their money and wealth have been vandalized by a few. Nigerians will as well have access to know who owns the secret accounts and who operate them. Nigerians will in addition know what they have been doing with the crude oil and their foreign collaborators will now be revealed, (Aminu, Malgwi, Kagu, & Danjuma, 2014).

Additionally, the FOI laws improve how government bodies operate. Decisions that are known to be ultimately made public are more possible to be centered on objective and valid reasons. The New Zealand Law Commission found in 1997 that, the assumption that policy advice will ultimately be released under the Act has in our view enhanced the quality and transparency of that advice, (Hazell, 2014). The Australian Law Reform Commission and Administrative Review Council found, the FOI Act has had a significant impact on the way public agencies make decisions and the way they record information, (Odigwe, 2011). It has focused the minds of the decision-makers’ on the need to base decisions on germane factors and to record the decision making process. The knowledge that decisions and processes are open to inquiry, as well as under the FOI Act, imposes a constant discipline on the public sector.

FOI is regarded a vital tool in anti-corruption measures as reasons for giving contracts and other financial transactions must be documented and justified. In India, grassroots social activist groups use the right to know laws to get information on local public works projects and expose the exact amounts said to have been paid at public meetings where community members are then asked if the projects have been concluded, and how much they were paid, (Birkinshaw, 2013). The adoption of the FOI laws have exposed a lot of instances in which real payments were less than the amount that had been documented as given to individuals who had died and supplied to projects never concluded.

In countries that have lately made the switch to democracy, FOI laws allow governments to break with the past and let society and the victims and their families of abuses to learn what happened and better comprehend. Almost all recently developed or modified constitutions incorporate a right to access information from government bodies as a fundamental human or civil right.

FOI laws enhance the enforcement of several other economic and political rights. In India, the FOI laws are used to enforce rations distribution by exposing that food vendors aren’t providing the government-subsidized food to impoverished citizens. This has led in substantial changes in the food distribution system to make sure that citizens are getting their food while vendors are getting appropriate compensation, (Siraj, 2014). Others are using it to prompt officials to respond to longstanding problems with roads, buildings and jobs. In Thailand, a mother whose daughter was deprived of entry into an elite state school demanded the school’s entrance exam results. When she was turned down, she appealed to the Information Commission and the courts. At last, she obtained information revealing that the children of influential people were accepted into the school even if they got low scores. Consequently, the Council of State issued an order that all schools accept students exclusively on merit. In the United State, the FOI Act was used to expose instances of government-approved torture and illegal surveillance, (Wyatt, 2015).

Freedom of Information Act assures the right of access to information held by public agency irrespective of the form in which it is kept and is applicable to private agencies where they utilize public funds, perform public functions or provide public services. It requires all agencies to proactively disclose essential information concerning their structures and processes and mandates them to build the capacities of their staff to effectively implement and conform to the provisions of their Act, (Olukoya, 2011).

The main purpose of this law is to provide the citizens of Nigeria and non-Nigerians residing in Nigeria greater access to information and records officially in custody by their government so that the citizens will become involved in the process of governance. The right of the citizens to official information is one of the creeds of democracy and an authentic weapon to deter corrupt practices and arbitrary use of governmental powers, (Kadiri, 2015). The law, that is, Freedom of Information Act (FOI Act), does not however fail to identify the limits to individual’s right to know. Personal privacy is still protected to the point that public interest is not put at risk.

1.2. Statement of problem

Ever since Nigeria got her political independence in 1960, Nigeria has been ruled more by military administrations than by elected civilian administrations. The different military regimes which ruled the country at various times are expected to have some patterns of relationship with the press, which is a foremost institutional actor in governance. Prior to the enactment of the Freedom of Information Act in 2011.

Nigerian press witnessed a serious struggle with the then colonial administrations that were against the press checks and inquiry into their administration. Of a major concern to this study is the exploration of the analysis of the right of access to information under the Nigerian Law of FoI Act.

One major problem identified is the lack of compliance or conformity with the provisions of the FOI Act by public institutions or among government officials. With respect to this, there appears to be lack of enthusiasm on the part of public institutions to react to requests made pursuant to the Freedom of Information Act. Besides the denial to respond to requests for information, public institutions as well appear to have failed in compliance to the act of record keeping, publishing and reporting obligations put upon them by the FoI Act, (Orobator, 2009). It should be observed that, the FoI Act isn’t solely concerned with reacting to requests but requires all public institutions or government officials to systematize their records in a way that makes them available to the public as well. The FoI also requires public institutions to publish certain information using multimedia format.

Meanwhile, it has been over eight (8) years since the enactment of the FoI Act the issue of lack of awareness or apathy on the part of an average Nigerians still exists in regards to the basic provisions of the FoI Act and how the right of access granted therein can be utilized effectively, (Odemwengie, 2003).

The shroud of confidentiality pervades the public service in Nigeria, which makes it so hard to get information from a public institution. A large number of government information in Nigeria is termed as “top secret”. Therefore, impassable is the problem that government offices sometimes withhold information from each one another under the guise of official confidentiality, thereby leading to a lack in transparency and openness as mandated by the FOI Act, (Akande, 2008). The result is that, individuals are deprived the access to information that is crucial for exact reporting, and unraveling the web of corruption and unaccountable government in Nigeria.

1.3. Objective of the Study

This primary objective of this study is to give an in-depth analysis of the right of access to information under the Nigerian Law of FoI Act. The specific objectives of this study will seek to:

examine the effectiveness of the Freedom of Information Act in Nigeria assess if there is transparency and openness among public officials in Nigeria since the enactment of the Freedom of Information Act evaluate the relevance of the Freedom of Information Act to Nigerians determine the challenges encountered during the use or application of the FOI Act in Nigeria.

1.4. Research Questions

The following questions would be posed for this study

To what extent is the effectiveness of the Freedom of Information Act in Nigeria? Is there transparency and openness among public officials in Nigeria since the enactment of the Freedom of Information Act? To what extent is the relevance of the Freedom of Information Act to Nigerians? What are the challenges encountered during the use or application of the Freedom of Information Act in Nigeria?

1.5. Significance of the Study

It is believed that this research will be of utmost benefits to the Judiciary arms of government as they are the top tier in order to make access to information open to the general public when requested, and to further compel government and private institutions in the country to always provide the right information to the public as required. It is also hoped that, this study will be bound corporate organizations to abide and obey by the FiO Act as required by them. Furthermore, this study will the general public or citizens on how best to effectively utilized and exercise their freedom to access of information.

 

1.6. Scope of the Study

This research talks about the definition, histories, theory and impact as well as international, regional and national standards on freedom of information. The research will also evaluate the current legal administration of Freedom of Information law in Nigeria in the light of the enactment of the FoI Act. Issues in relations to who can exercise the right, how the right can be utilized effectively, scope of bodies covered, and the exemption provisions in the FoI Act have been mentioned. The exemption provisions in the FoI Act and laws not in agreement with the FoI Act were assessed. With respect to the fact that the FoI Act is a recent legislative enactment in Nigeria and there is foreign partnership on the subject matter, the research has drawn international best practices from foreign jurisdictions to abet better understanding of the subject matter, where required.

1.7. Methodology of the Study

The methodology of this study will be qualitative in nature. The secondary sources of information shall be through journals, reports, articles, newspapers, treaties, textbooks and various statutes which would be obtained from online sources. The most important statute is the Freedom of Information Act, 2011 while reference will be made to relevant provisions of the Constitution of the Federal Republic of Nigeria 1999 (As Amended). Comments and opinions of professionals on the subject matter as expressed in books, articles of mass media, academic journals and credible research materials available in the internet will as well be consulted.

1.8. Definition of key terms

Judiciary: is the system of courts that interprets and applies the law in a country, state or an international community.

Freedom of Information: is an extension of freedom of speech, a fundamental human right acknowledged in international law, which is in the present day understood more generally as freedom of expression in any medium, be it orally, in writing, print, through the internet or through art forms.

Act: is a bill which has voted for through the different legislative stages required for it and which has become law.

Law: is a system of rules that are created and imposed via social or governmental institutions to regulate activities or behaviour.

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