Governments all over the world exist principally to cater for the security and welfare of their citizens. This truism makes a compelling case for a social contract between the ruling class and the governed. This is the reason in modern democracies the principles of transparency, accountability and due process are strong pillars for a democracy to survive. The more open and transparent a government is the more respectful and obedient the citizens would be; thusly, modern democracy should and ought to be government of the people, for the people, by the people and accountable to the people at all times.
It seems the norm in Nigeria for public institutions to act outside their mandates with impunity. Access to critical information about the activities of such public institutions have been very challenging in Nigeria, as there existed no legal framework for access to o’cial information. Therefore, public institutions had no legal obligation to grant access to o’cial records and information.
Personally, do we need such a legal framework? I think not, because a government that has nothing to fear and sets out to serve the public interest should not be hoarding and hiding information or invoke the O’cial Secret Act whenever it suits it. Any citizen that has a genuine claim should not be shut out of the seat of justice. Ubi jus Ibi remedium. However, governments hide and seek game on disclosing o’cial information soon came to an end, or so some of us think.
The National Assembly of Nigeria in 2011 passed the Freedom of Information Bill (now Act) and same was assented to by the then President Goodluck Ebele Jonathan. The FOI Act confers upon Nigerians the right to seek and have access to public information in the custody of the government, any of its agencies and o’cials. Public institutions are therefore required to ensure that all o’cial records and information are properly kept and documented. Section 9(2) of the FOI Act, 2011 states that “Every government or public institution shall ensure proper organization and maintenance of all information or record in its custody, in a manner that facilitates public access to such information or record under this Act.”
Public institutions are forbidden under the FOI Act to hoard o’cial records and information or deny access to them by citizens of Nigeria. Section 2(4) of the FOI Act expressly states that “A public institution shall ensure that information referred to in this section is widely disseminated and made readily available to members of the public through various means, including print, electronic and online sources, and at the oices of such public institutions.”
To access public information, a citizen of Nigeria must apply formally to the public institution that has custody of the information and ensure that the application is properly addressed and duly acknowledged by the public institution. There is no legal requirement that in applying for access to such information, the applicant must disclose any special interest or the reason he is seeking the information. The reason for this is not far-fetched. Government exists for and is accountable to the people. This is an informal way of government accounting to the citizenry. It is not unusual that in spite of the laudable provisions in the FOI Act, 2011 some public instructions still pose some hindrance and refuse to either respond to request for information or avail the information sought. Section 4(b) of the Act provides that “Where the public institution considers that the application should be denied, the institution shall give written notice to the applicant that access to all or part of the information will not be granted, stating the reasons, for the denial, and the section of the Act under which the denial is made.
“However, the FOI Act also made provisions to cater for such deviant instances. The FOI Act preserves the rights of Nigerians who seek access to o’cial information to institute proceedings in a court of law to compel any public institution to comply with the provisions of the Act when such an institution has failed, refused and or neglected to comply with the provisions of the Act by refusing or declining to give access to a record or the information requested for. Section 7(4) of the FOI Act provides that where the government or public institution to whom an application for access to information is made fails to give the Applicant access to the information requested for within the time limit specified by the Act (7 days), the public institution shall be deemed to have refused to give access.
The definition of public institution is not limited to bodies or agencies under the Executive arm of government. Section 31 of the FOI Act (Interpretation Provisions) defines a public institution as “any legislative, executive, judicial, administrative or advisory body of Government,including boards, bureau, committees or commissions of the State, and any subsidiary body of those bodies including but not limited to committees and sub-committees which are supported in whole or in part by public funds or which expends public fund and private bodies providing public services, performing public functions or utilizing public funds”.
Therefore, private entities whose activities are funded by the public tax or revenue come within the definition that disclosure would cause.” In the case of Code of Conduct Bureau & 2 Ors. v. Stephen Nwankwo (2018) LPELR-44762(CA) the Court of Appeal sitting at Enugu armed the decision of the trial court compelling the Appellants to issue certified true copies of the Assets Declarations form of the Respondent’s father (a civil servant) led with the Bureau to enable the Respondent use same in court (another case) to verify his father’s signature. The need for public o’cials and institutions to obey laws of the country cannot be over-emphasized. In the case of Governor, Ebonyi State & Ors. v. Hon. Justice Isuama (2003) FWLR [PT. 169] 1210 @ 1227-1228,the Court of Appeal admonished that “Obedience to the rule of law by all citizens but more particularly those who publicly took oath of o!ce to protect and preserve the constitution is a desideratum to good governance and respect for the rule of law. In a democratic society,this is meant to be a norm; it is an apostasy for government to ignore the provisions of the law and the necessary rules made to regulate matters”.The non-domestication of the Freedom of Information Act,2011 is sore point being relied upon by entities and agencies under State governments to allow access to information. The absence of such laws enacted by the States, the FOI Act should be deemed to cover the held and apply to the States. The FOI Act is a practical application of Section 15(5) of the 1999 Constitution, as amended, which provides that “The State shall abolish all corrupt practices and abuse of power”.Judicial activism is advised to achieve this, as was done by the Supreme Court in the case A.G. Ondo State vs. A.G. Federation & 35 Ors. 10 NSCQR 92002) 1036.
Olukunle Edun Esq. LL.M
08038695936, eduovo@yahoo.com
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