Freedom of Information Act: A tool for effective citizens’ participation in Governance by Samuel Offia
In a democratic society like Nigeria, it can never be over emphasized that access to public records is fundamental to her development, hence, the need for government to proactively, and at all times make public records freely available to enable citizens effectively participate in government activities in the spirit of transparency and accountability.
On the 28th day of May, 2011, the Freedom of Information Act (FOIA) was passed into law in Nigeria after enduring the longest legislative debate in the Nigerian history. The act was designed to protect and make public records and information accessible in accordance with public interest. The Act encourages citizens to hold their government accountable for misappropriation of public funds or failure to deliver public service. It equally seeks to shield serving public officers against any adverse consequences from unauthorised disclosure of certain kinds of official information.
As a tool for effective citizens participation in governance, Section 1 (1) of the FOIA, 2011 empowers the citizens to request for access to public records. It provides thus:
“notwithstanding anything contained in any other Act, law or regulation, the right of any person to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution howsoever described, is established”.
In the case of Public and Private Development Centre (PPDC) ltd/gte Vs. Integrated Parking Services ltd 2013, the court held that the applicant, by virtue of Section 1(1) of the FOIA 2011, has the right to request, from the respondent, public information and the applicant need not show reasons for such request.
Civil Society Organizations, the media, corporate bodies and individuals have benefited from using the Act to source for data from public institutions. On their own part, MDAs are equally responding to FOI requests to a reasonable degree which could be as a result of a clearer understanding on the importance of having citizens participate in government activities. Notwithstanding the foregoing however, there are still some hurdles to overcome for the Act to have full effect.
On January 8 and February 20, 2018, Nigerian human right lawyer Mr. Femi Falana wrote to the Nigerian National Petroleum Corporation (NNPC) seeking for details of some activities of the corporation in the spirit of transparency and accountability, Surprisingly, the latter declined in a response stating that the Corporation (NNPC) is not a public institution and as such, cannot be bound by provisions of the FOIA 2011, citing section 31 of the Act. The same response was given to PPDC on 30th April, 2018 in her request made on 9th of April, 2018 to NNPC on procurement related data. It is disheartening for a corporation like NNPC to come up with such assertion without casting her mind to Section 2(7) of the FOIA, 2011 which states that-
“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 functions”
In view of section 2 (7) of the FOIA, it is morally, ethically, logically and statutory wrong for a Corporation like NNPC set up by law, in section 1 (1) of the NNPC Act 2004, which government has controlling interest in, and utilizes public funds, providing public services and performing public functions, to decline the status of a public institution.
MDAs also misinterprete Section 15 of the Act to decline FOI requests to citizens.
It is not in dispute that the Act contemplated protection of third parties in contractual activities, but it is worthy of note that Section 15 of the Act is not a blanket provision and as such, cannot protect a third party till eternity.
The protection comes to an end when the entire procurement process has been concluded and the contract awarded to the winning party. In addendum, in the cases of PPDC vs. Honourable Minister of FCT &anor, PPDC vs. Power Holding Company of Nigeria, wherein the court ruled on circumstance within which a public institution shall deny an application for information under Section 15 of the FOIA 2011 to include;
- The transaction must still be at the negotiation stage
- A third party must be involved and;
- The disclosure of the information could reasonably be expected to interfere with the contractual or other negotiations of a third party.
Considering the foregoing, the moment a contract is awarded, the issue of protecting a third-party interest is to that extent foreclosed, but some MDAs still go ahead and use protection of a third-party interest as a ground for declining applicants request. In some cases, when actions are instituted in court against some MDAs, you will see them approach the court with series of preliminary objections, one of which could be, asking the court to strike out the suit because the applicant has failed to issue the respondent with a “pre-action notice” which is a condition precedent, an applicant must adhere to before bringing an action under the Act. E.g. Section 12 (2) of the NNPC Act 2004 .etc.
Moreso, there has been a serious debate on whether the FOIA is applicable to States or not. Legal practitioners, public institutions and corporate bodies have all shared their thought on this issue. Some will say its applicable to States while some perceives it on the contrary. Juristic ink has equally flown on this issue at the trial courts (High Court) of various states as to whether FOIA is binding on states without being domesticated. Some State High Courts ruled that the Act requires domestication by States before it can be enforceable and the other said there’s no need for domestication since it is an Act validly made by the National Assembly and as such should be binding on States in line with the doctrine of covering the field.
On 2nd March, 2018, I had the privilege to discuss extensively on PPDC’s weekly Budeshi Radio Program on 95.1 fm Abuja, wherein I analyzed conflicting decisions of the State High Courts on the said subject. It is paramount to note that High Courts, whether Federal or State are both Court of coordinate jurisdiction and as such, their decisions are not binding on each other and the only way to address this issue is either to have the Court of Appeal rule on its applicability or possibly, the Supreme Court pronounce on it.
However, on the 27th day of March, 2018, the Court of Appeal at the Akure division in Ondo State held that the FOIA is binding on all the states in Nigeria. This is an applaudable effort on the part of the Appeal Court. It is still baffling how some government institutions fail to provide information to taxable citizens on how their taxes were spent. What is more, in response to the Court of Appeals decision and in line with the political quest to foreclose citizens from having access to information, Ondo State government has approached the Supreme Court seeking to upturn the decision of the Appeal Court. Well, it remains to be seen whether Ondo State government will respect the right of the citizens by virtue of the recent court of Appeal ruling and start making information freely available pending the final decision by the Supreme Court.
Finally, no matter how much public institutions may want to twist the provisions of the Act, or take unholy advantage of the exemption provisions therein, we should always remember that life is worthless without information. It is pertinent for stakeholders across board to imbibe the culture of openness in government activities so that citizens can effectively participate in governance.
Remember, we ALL are accountable.
