Nigeria: The Limits of Freedom of Information Act
Date: 11 October 2011
Five months ago when President Goodluck Jonathan signed into law the Freedom of Information bill, many Nigerians were quick to observe that the document comes with so many deficiencies.
However, considering the length of time and the rigours that brought the Act to life, stakeholders were prepared to take the half cake, which is usually better than none at all. Last week, however, a professional body, the Public Administration and Management Development Institute (PAMDI), took the lead in dissecting the document and analyzing how it can be implemented successfully.
The two-day national conference on the theme "Freedom of Information Act 2011 and the Fight against Corruption and Corporate Fraud in Governance", organized at Abuja, was the institute's way of lending its voice to the federal government's fight against corruption and corporate fraud using the FOI Act as a point of reference. The event, the first of its kind by PAMDI, drew attendance from a wide section of civil society groups, the media and interested members of the society. The expectation is that it would contribute towards the achievement of the transformation agenda of President Jonathan. Any government that views power as a shared asset will most willingly share with the people who elected it, useful information about how the government is being run.
The conference did an overview of the Act, analyzed its prospects and challenges as well as the long drawn battle towards its realization from 1999 till it was finally passed into law on May 24th, 2011 and signed thereafter by President Jonathan. It observed that the Act contains more exemption sections and clauses than sections that grant access to information, alerting that some mischievous public officers can use these sections for unjust and mischievous purposes. For instance, only Sections 1 and 3 grant access to information; but as many as ten sections (Sections 7, 11, 12, 14, 15, 16, 17, 18, 19 and 26) are meant to deny the public access to information.
However, the omnibus proviso against denial of information that says "where the interest of the public would be better served by having such record being made available, this exemption to disclosure shall not apply" was commended, with the expectation that the Judiciary would interpret the proviso liberally for the public good.
Due credit was given to the broad coalition of Nigerian civil society groups like Right To Know Movement, Media Rights Agenda, Civil Liberties Organization, Nigeria Union of Journalists and the Open Society Justice Initiative, which have long worked and advocated for the passage of the FOI bill.
One issue that came into focus was the attitude of Corporate Governance which is concerned with the processes, systems, practices and procedures that govern institutions and the manner in which these rules and regulations are applied and followed. While acknowledging that corruption is a worldwide phenomenon found in every society throughout history, corporate governance is one of the most effective tools to reduce corruption and ensure the well-being of the society.
There was this observation that the success of implementations of the FOI Act is the co-responsibility of both the government ("supply side") and the governed ("demand-side"). The demand-side which includes the citizens, civil society and community organizations, media and the private sector must take responsibility for using the law as well as monitoring government efforts. The attitude of public administrators is critical to the successful implementation of the Act because public administrators, who are the face of government, will determine the quality of, and access to, information.
When considering successful implementation of the Act, it must be acknowledged that presently, virtually all government information in Nigeria is classified as top secret. This culture of secrecy will make it difficult to get information from any Ministry, Department or Agency (MDA). Also, there are still subsisting laws that could prevent civil servants from divulging information, notably the Official Secrets Act, the Evidence Act, the Public Complaints Commission Act, the Statistics Act and others. Reconciliation of the contradictory provisions of these laws with the FOI law is therefore imperative.
However, there are other challenges of complying with the FOI Act. Some of these include poor culture of record keeping/maintenance and retrieval, capacity challenge in many public institutions, frustrating and time consuming bureaucracy in public service as well as widespread corruption and the high level of ignorance among the work force in the public sector.
So what should be done? It is advised that the federal government and its agencies should take steps to ensure that necessary regulations or procedure are put in place for the effective implementation of the Act. For instance, the Attorney General of the Federation (AGF) should ensure that regulations already produced for the smooth implementation of this Act are gazetted. It must still be emphasized that it is the responsibility of all Nigerians to carry out the oversight functions of ensuring compliance to the provisions of the Act and not that of the National Assembly alone.
The impact of the Act will not rest with civil society groups alone. The public is entitled to the truth, and only correct information can form the basis for sound journalism and ensure the confidence of the people. With the FOI Act, the press is now better armed to hold public officers accountable to the people and for the job they do. As the Fourth Estate of the Realm, the effect on journalism will undoubtedly have a spiral effect on the entire society for the benefit of all.
Pastor Ogbuokiri, the Director-General of PAMDI, wrote from Abuja.