Right of Access to Information - Nigeria

By Edetaen OjoMedia Rights Agenda, Nigeria

edet@mediarightsagenda.org

Constitutional Framework for FOI• The Nigerian Constitution contains no

specific or clear right of access to information.

• It guarantees only a general right to FoE.

• Section 39 of the Constitution guarantees “every person” the right to “freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”

Legal Situation of ATI• Nigeria has no comprehensive ATI Law• Citizens therefore have no enforceable legal

right of access to information. • Conversely, many laws contain secrecy

clauses prohibiting public officials from disclosing official information

• Unauthorized disclosure of information by public officers is a crime.

• Unauthorized possession by citizens of some types of information is also a crime.

Legal Situation of ATI (Contd.)• All government officials are required to

swear to an oath of secrecy when they take office.

• This oath must be taken by all members of the civil service as well as other persons holding positions or executing functions as the President may decide by a notice published in the government’s Gazette. - Second Schedule to the Oaths Act, Laws of the Federation of Nigeria, 2004.

The Campaign for ATI in Nigeria

• Campaign for ATI began in Nigeria over a decade ago against this background

• Campaign was a civil society initiative.

• The FOI Bill was first presented to the Legislature in 1999, although developed over several years prior to this period.

• It is now the oldest Bill pending before the National Assembly.

The Campaign for ATI in Nigeria• Campaign for access to information in

Nigeria has spanned two eras.• The Obasanjo era: characterized by:

- A relatively sophisticated bi-cameral Federal Legislature

- The Legislature was constantly fighting to ward of the influence of an overbearing

president. - The Legislature recognized the need for

a Freedom of Information law.

The Campaign for ATI in Nigeria

- The legislators resisted subtle opposing to the Bill by the Executive

- Legislators in both chambers passed the Bill unanimously

- Ironically, the President who came to power professing transparency &

accountability, shot it down.

The Campaign for ATI in Nigeria• The Yar’Adua era: characterized by:

- Almost entirely new legislators.

- About 80% of the old legislators were not returned in party primaries & elections.

- Significant number of new legislators ignorant about or uninterested in transparency

- Strong indications from the President of support for the Bill, back by a historic first public

declaration of assets by a Nigerian President

The Campaign for ATI in Nigeria• Bill was first passed by House of

Representatives on August 25, 2004.• Bill later passed by Senate on Nov 15, 2006. • The Bill was harmonized by a Conference

Committee of both Houses on Feb 14, 2007. • Harmonized version of the Bill adopted by the full

Senate on Feb 21, 2007.• Also adopted by the full House of

Representatives on Feb 27, 2007.

The Campaign for ATI in Nigeria• Bill sent by National Assembly to President

Obasanjo for assent on March 16, 2007• The Constitution gives President 30 days to assent

to a Bill or signify that he refuses to assent.• The President did neither.• He claimed that the Bill was never sent to him• Created confusion & uncertainty about the

whereabouts of the Bill • Created divisions within the National Assembly

about how it should respond.

The Campaign for ATI in Nigeria• Confusion over the whereabouts of the Bill

resolved one year after President Obasanjo left office

• In June 2008, President Umaru Yar’Adua, by a letter dated June 23, 2008, returned the Bill to the National Assembly.

• Bill returned along with 22 others passed by the National Assembly & sent to the President for assent but which Obasanjo failed to sign into Law before leaving office.

The Campaign for ATI in Nigeria• Despite claiming not to have received the Bill from

the National Assembly, the former President gave reasons on 2 occasions why he would not sign it into Law.

• The first occasion was on April 26/27, 2007 when he received a team of civil society representatives at the Presidential Villa in Abuja.

• He restated the reasons when he featured on a Nigerian Television Authority (NTA) network programme “The President Speaks”, aired live on May 20, 2007.

The Campaign for ATI in NigeriaThe former President’s reasons were:• He did not like the title of the proposed law

(Freedom of Information Act). He would have preferred Right to Information Act;

• He did not think that the exemption of information injurious to national defence sufficiently protected national security information

• He was uncomfortable with the powers given to the courts to review & override a refusal by the head of a government or public institution to disclose the information requested

The Campaign for ATI in Nigeria• Following President’s failure to assent, the

Bill is going through the legislative process afresh.

• Prospects for passage of the Bill during the tenure of current National Assembly not looking good.

• Most of the legislators appear totally unconcerned about widespread public demand for the passage of the Bill.

The Campaign for ATI in Nigeria• In the House of Reps, the Bill made some

progress in the first few months

• But for nearly 2 years now, a significant number of members of the House have prevented any further discussion on the Bill.

• Apparently desperate, vocal & unruly, everytime the Bill is scheduled for debate, they create a commotion on the floor of the House to prevent any discussion.

The Campaign for ATI in Nigeria• They have been unable or unwilling to articulate

their real reasons for opposing the Bill so that their concerns can be addressed.

• Instead, inconsistent & sometimes ridiculous excuses have been offered for their conduct, including- Civil society too aggressive in the campaign- The media is too powerful to have such a law- Legislators have not been adequately lobbied- Why should a northern President be the one to sign such a Law when a southern President did not, etc.

The Campaign for ATI in Nigeria• They are also unwilling to act in their

enlightened self-interest as such such a Law would evidently enhance the effectiveness of legislators, including in:

- Their oversight functions on Executive agencies & departments

- Formulating new legislation or amendments to existing legislation

- Conduct confirmation hearings, etc

The Campaign for ATI in Nigeria

• The Senate has been much more clever than the lower chamber in its approach towards frustrating the Bill.

• Rather than reject the Bill outright, its Information Committee has proposed a version that, if adopted, will be unworkable & would defeat the purpose of an ATI.

• The Committee conducted a public hearing ostensibly to ensure public input into the Bill

The Campaign for ATI in Nigeria• The Committee thereafter introduced several

obnoxious provisions into the Bill previously passed by the National Assembly, none of which were proposed at the public hearing.

• It deleted section 2(2) of the previous Bill that gave citizens a right of access to information.

• The original section provided that: “An applicant need not demonstrate any specific interest in the information or record being applied for.”

The Campaign for ATI in Nigeria• This has been replace with a new provision that

requires anyone applying for any information to:

- prove that the information will not compromise national security

- first satisfy a high court on his or her need for such information

• So the first step for anyone who needs information is to go to the high court

• Very few, if any, ordinary Nigerians would be able to climb this hurdle.

The Campaign for ATI in Nigeria• Extended the period for granting access from

10 working days in the previous Bill to 30 working days in the first instance.

• Time may be further extended by 90 working days at the absolute discretion of the head of the public institution (i.e. if he or she deems that an extension of the time is appropriate).

• In effect, it will take an average of 120 working days to get information, in addition to the duration of the court process

The Campaign for ATI in Nigeria

• The Committee expunged nearly all the public interest override provisions in the previous Bill, except for Third Party information [S. 19(4)].

• It therefore creates an absolute exemption of certain kinds of information & public interest will no longer matter.

• The Committee also deleted the protection of whistleblowers contained in the previous Bill.

The Campaign for ATI in Nigeria• The Senate President has also said

repeatedly that criminal defamation provisions must be included in the Bill as a pre-condition for its passage.

• This is to prevent the media from abusing the proposed law.

• If adopted, the law will put an onerous burden on those who want to use it.

• This will discourage the public from using it.

The Campaign for ATI in Nigeria• Several indications from the Presidency that

President Yar’Adua intends to sign the Bill into Law when it comes before him

• The President has said that although it is not an Executive Bill, his government supports it & he would sign it into law as soon as it is passed by the National Assembly.

• What he has not done is to encourage the National Assembly to pass it speedily so that he can sign it into Law.

Future Outlook• The next round of general elections in

Nigeria is about a year away, possibly less.

• In the next few months, electoral matters will dominate the agenda of the National Assembly with little room for anything else.

• Even then, with electioneering campaigns hotting up, many legislators will typically abandon the legislative duties to focus on their re-election campaigns

Future Outlook• The prospects for a Freedom of Information

Act under the present government in Nigeria look grim.

• What look more likely is that Nigeria will once again be left behind in this endeavour by its kid brothers in the region – Ghana, Sierra Leone & Liberia.

• We look forward to learning from their implementation experiences!