NASS: Where is the FOI Bill?

By: Idumange John

The freedom of the expression and the press is one of the bastions of democracy and good governance. In fact, the objective and accurate dissemination of information by the press in a
democratic system is as important as oxygen to the life of a man. It was for
this reason that the Freedom of Information (FOI) Bill featured prominently in
the second tenure of the Obasanjo administration but its passage was truncated
by the self-aggrandizing tendencies of members of the National Assembly (NASS).

Regardless of the ideological differences in the various socio-political systems of the world, press freedom - a logical extension of man’s inalienable freedom of expression
is today a universal right. It is universally guaranteed in Article 19 of the
Universal Declaration of Human Rights and enshrined in the written
constitutions of almost all countries around the world. In Nigeria, it has
been ratified and enacted in CAP 10 Laws of the Federation of Nigeria (1990).
In lands where unwritten constitutions are operational, the freedom of
expression is observed not as a mere convention but is regarded as sacrosanct
and indispensable for human survival. That is why the freedom of information is
internationally guaranteed in the United Nations Charter, and adopted by most
regional and continental organizations.

The freedom to seek information is guaranteed by a number of international instruments. Nigeria is signatory to the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights. It is also guaranteed in Article 9 (1)
of the African Charter on Human and Peoples Rights, which is part of Nigeria’s
domestic law under the African Charter (Ratification and Enforcement) Act. At
its Summit in Maputo, Mozambique in July 2003, the leadership of the African
Union adopted a set of Principles elaborating Article 9 of the African Charter
which, among other things, declare that the African Charter entitles “everyone
to access information held by public bodies” and to “access information held by
private bodies which is necessary for the exercise or protection of any right”.

It is therefore surprising that most public institutions in Nigeria still operate under the veil of secrecy, which, insulates government and its actions from public scrutiny. At present, there exists no law, which
permits access to official information. On the contrary, there are numerous
legislations containing clauses forbidding the disclosure of official
information by public servants, and these laws have their attendant penal
sanctions. Some of these laws with secrecy clauses include the Evidence Act,
the Federal Commissions (Privileges and Immunities) Act, the Public Complaints
Commission Act, the Architects (Registration etc) Act and the statistics Act.

Other means by which the government perpetrates secrecy include the use of official secrets Acts and Criminal Code, which require documents to be marked “Classified,” “Secret” “Top
Secret” or “Confidential”. In addition, certain categories of government
officials are required upon appointment to subscribe to an oath of secrecy
under which they undertake not to disclose any information which comes to them
in the course of their performance of their official duties unless specifically
authorized to do so. In most government parastatals, management personnel are
compelled to take an oath of secrecy in order to keep secret what may be termed
confidential information about their operations. Even the courts of law are often precluded
from compelling the disclosure of such information.

Freedom of access to government information goes beyond the media’s desire to play watchdog. The lawyer’s interest in representing clients, the librarians need to be supportive
of inquiring patrons, or the historian’s desire to learn more about the
workings of government. It goes to the heart of democracy. It is the best
protection individuals have against rulers, the best way of knowing that the
laws are enforced honestly, even handedly, and efficiently. Freedom of access
promotes citizen participation and empowerment. When those affected by
regulations or rules understand such laws, they will be more willing to obey
them if they are accessible. Also, the quality of government decisions usually
would be better if they admit public input in the process of developing them.
Legalization of access to information confirms public ownership of government
information, and that it is gathered or created, maintained and used for public
purposes. More often, greater access to
government information is pragmatic, as more information means more efficient
resource allocation. For example, before the Obasanjo administration,
allocations made to States and Local Governments (LGA) were not disclosed hence
only State Governors and LGA Chairmen were privy to such monies. Secrecy at the
level of governance is a recipe for corruption and this invariably carries
adverse social and economic consequence for the population.

Though press freedom evolved in capitalist liberal democracies such as England under libertarianism, (as part of parliamentary and congressional or presidential systems based on
individual liberty and private enterprise). The social responsibility theory
originated in the United States in the 20th century, although it
could be regarded as an Anglo-American concept, it stipulates that since
freedom carries concomitant obligations, the media of mass communication will
enjoy a privileged position, and must assume obligation for social
responsibility, and if they do not, someone must ensure that they do.

Unlike in the capitalist liberal democracies, the perception and definition of press freedom in the socialist world such as Cuba,
China, North Korea, Albania,
etc. is based on the Soviet Communist theory of the press which developed in
the Soviet Union after the 1917 Bolshevik
Revolution. Under the theory which evolved from Marxist – Leninist – Stalinist
thought, the chief purpose of the press is to contribute to the success and
continuance of the socialist system, especially the party ideology. The Soviet
media theory itself derives from the basic principles of “scientific socialism.

While admitting that there are developing countries that fall in between two extremes, analysts believe that developing nations are trying to model their systems along the Western
libertarian lines. After perestroika and glasnost even the core
socialist enclave has started to modify the hard-line Marxist-Leninist concept
of veil of secrecy. Thus no matter the ideological permutation of any nation,
there is consensus that a free press is an indispensable aspect of democratic

In nations where the freedom of information is guaranteed, there is a statutory presumption that all government records are open to the public, since government itself is supposed
to be conducted in the benefit of the people, and only those records
specifically exempted in advance by the Act or other statues may be withheld.
More so, individuals are empowered to request to see that government records
about themselves are accurate and are not being misused. It also implies that
no matter how embarrassing or inconvenient a disclosure might be, an agency
cannot withhold information from a legal person who requests it. Accordingly,
legal persons can ask the courts to compel a government body to release
information illegally withheld.

In addition to its democratic value, individuals and organizations use the freedom of information (FOI) laws for various economic and social purposes, including access to
information on government contracts, regulatory enforcement data, health and
safety reports, and even community historical materials. Public sector
information plays a fundamental role in the proper functioning of markets and
the free circulation of goods and services to people. Without user-friendly and
readily available administrative, legislative, financial and other public
information, economic actors cannot make fully informed decisions. Therefore,
for Nigeria
to make headway in attracting Foreign Direct Investment (FDI), the free flow of
information is a sine qua non.

Government officials may want to argue that even without legislation on the freedom of information, interested person can still have access to government information. There may be a plethora
of publications sent out to depository libraries, rains of press releases,
reports and statements from government officials, and piles of rules and
opinions and orders and manuals that are made available through various
government agencies, but without FOI legislation, access would be limited to
what government officials are willing to release.

The right to seek, receive and impart information is not merely a corollary to freedom of opinion and expression; it is a right in and of itself. As such, it is one of the rights
upon which free and democratic societies depend. It is also a right that gives
meaning to the right to participate, which has been acknowledged as fundamental
to, for example, the realization of the right to development. Public
institutions have an inherent obligation to disclose information and every
member of the public has a correspondent right to receive such information;
“information” includes all records held by a public body, regardless of the
form in which it is stored.

As an acceptable minimum, the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to
information; the law should also provide for a number of mechanisms to address
the problem of a culture of secrecy within Government. A refusal to disclose
information may not be based on the aim to protect Government from
embarrassment or the exposure of wrongdoing; a complete list of the legitimate
aims which may justify non-disclosure should be provided in the law and
exceptions should be narrowly drawn so as to avoid including material which do
not harm the legitimate interest of government.

All public bodies should be required to establish open, accessible internal systems for ensuring the public’s right to receive information; the law should provide for strict time
limits for the processing of requests for information and require that any
refusals be accompanied by substantive written reasons for the refusal.

It appears, the honourable men have confined the FOI Bill to the mortuary because it is likely to work against the self-perpetuation bid of a great many of them who are bent on foisting themselves on the masses. The
only practical way the National Assembly can demonstrate its commitment to
freedom of access to information and freedom of expression is the immediate
passage of the FOI bill which is generally believed to be the cornerstone of
democracy. If Nigeria is determined to reform her electoral system, power
sector and other reforms that accompany good governance, the passage of the FOI
bill is no longer negotiable and the masses would hold the NASS accountable for
truncating the passage of the bill.

Idumange John, is Fellow, Institute of Public Management, Nigeria

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