Implementation of the access to information law in Nigeria

Author: Jacob O Arowosegbe
Solicitor and advocate of the Supreme Court of Nigeria

Introduction

Implicit in the guarantee for freedom of expression under section 39(1) of the Nigerian 1999 Constitution[1] is the right to receive and disseminate information and since this right is meaningless without a corresponding right to freedom of access to information, the latter is by implication granted. The right is, however, superseded by the constitutional recognition of the right of the government to restrict access to certain information confidentially received or which it considers prejudicial to public security, order, health, and morality.[2] An example of a law enacted to restrict access to government-held information is the Official Secrets Act, 1962.[3] Under the Act, virtually any information only needs to be placed under a system of security classification currently in use to deny members of the public access to it.[4] Public officials are in fact routinely required to keep sealed lips concerning the conduct of government business.

The enactment of the Freedom of Information Act, 2011 (NFOIA) in Nigeria, therefore, brought much promise of a more open and transparent conduct of governmental and public affairs. However, despite the commencement of the Act, the conduct of governmental business at various levels has neither become more transparent nor have public officials (elected and appointed) become more accountable to the general populace. Despite the clear provisions of section 2(a) of the NFOIA, a visit to the website of any public authority in Nigeria, if one exists, would for instance discover such a paucity of information that one wonders why the website was created in the first place.

This, perhaps not surprisingly, reflects the low level of adherence to the principles of the rule of law in the country. The immediate former regime under President Mohammed Buhari was particularly notorious for its flagrant disregard for the principles of the rule of law. Of note was the government’s arrogant non-compliance with judicial decisions, compromising democratic stability and entrenchment.[5] For instance, the 2022 Rule of Law Index ranks Nigeria 118 out of 140 countries^[6] while the 2023 Index ranks Nigeria 120 out of the 142 countries surveyed.^[7]

This article examines some specific issues impeding the effective implementation of the NFOIA. It argues that the march towards a more effective recognition and enforcement of the right of access to information and consequently a more open, transparent, and accountable government in Nigeria requires a good appreciation of these issues including a strong political will in tackling them. What is needed urgently is the adoption of an independent regulatory body with the power to impose sanctions in place of the current enforcement regime under the office of the Attorney General of the Federation (AGF).

The impediments

The realisation of the right to access information is faced with the following impediments. First, the low level of awareness of the provisions of the law among members of the public and even public officials. This is evident in the 2019 annual report on the implementation of the NFOIA submitted to the National Assembly by the AGF. This report while recognising the ‘general apathy amongst those that should operate the Act’, linked this with the ‘high level of ignorance about the provisions of the Act and the nature of obligations expected of public institutions.’[8]

It is plausible that this apathy is being strengthened by the hitherto closed system for the conduct of governmental businesses which for decades has been the norm for public officials. It is notable that this colonial and neo-colonial mentality has in particular been intensified by years of repressive military regimes. Many public officials are thus either still oblivious or yet to come to terms with the imperative demands of the NFOIA. Inability to come to terms with the law demonstrates a failure to appreciate its essence for the development of a vibrant democratic and human rights conducive governance culture or system. Moreso, there is no elaborate programme aimed at educating, enlightening, and familiarising public officials with the provisions of the NFOIA.

Related to this is the lack of an effective institutional regime for the implementation of NFOIA. The implementation process under the office of the AGF is arguably weak and ineffectual. The weakness in this arrangement jumps up on several areas. One is the pre-existing concern often raised on the need to unbundle the office of the AGF and that of the Federal Minister of Justice. The two offices are currently held by one person as constitutionally prescribed and many have highlighted the need to separate the offices. The NFOIA instead of lessening the burden of the AGF, has added to it.

Another concern is the issue of the independence of the AGF. As the chief legal officer of the Federation, the AGF represents the government in all matters before the courts and the office would normally be a party in any action against the federal government. To what extent therefore would the AGF be neutral in an action taken for instance by a civil organisation against the Federal Ministry of Justice for non-compliance with the provisions of the NFOIA? Another area is in the issuance of binding guidelines, regulations and notices requiring compliance by concerned public authorities with the NFOIA and adherence to the principles of open government and accountability.

Further, there is a concern relating to the low level of advocacy among human rights activists and civil society organisations (CSOs) in the country unlike during the last days of the military era. One reason for this may be attributed to the influence of the political class who formerly were on the side of activism and advocacy. Many of them now wield political power and it seems civil society groups, including the labour unions are yet to wean themselves from the clutches of the former. Labour unions were especially noted for their ability to mobilise their members for effective nationwide protests and strikes that forced the government to assent to their demands. It is expected that as the socioeconomic effects of bad governance become more odious, human rights activists and CSOs will eventually be able to wean themselves from the influence of their former allies turned foes. Active and strong advocacy is certainly a way to go in the enforcement of progressive laws such as the NFOIA.

Finally, there is the unsettled question of the jurisdictional scope of NFOIA. Does the NFOIA, being a federal legislation, have a national scope in the sense of being applicable to both the public authorities of both federal and subnational governments? This question was answered in the negative by the Court of Appeal in EDOSACA v Osakue and others.[9] The court agrees with the submission that the NFOIA applies only to federal public authorities and agencies and not to subnational ones. The court reasons in this line due to the powers granted to the NASS and State Houses of Assembly (SHA) respectively over the public records and archives of the federation and the states on the concurrent legislative list.[10]

The court further justifies its decision by reference to the implementation regime under the Act. The court considering the country’s federal status notes that the Act could not have been intended to apply to institutions of state governments as it is absurd to expect the AGF to give instructions to institutions over which it has no power of compulsion bypassing his or her counterpart at the state level. According to the court:

The question then is, can the Attorney General of the Federation exercise oversight function over state institutions or require them to submit annual reports to the exclusion of the State Attorney General? Secondly can the Attorney General of the Federation give directives to the Appellant (Edo State Agency for the Control of Aids) when the Constitution has clearly created the office of the Attorney General of a State? The answer is a definite “NO”.

This decision was upheld in Governor of Delta State v Olukunle[11] despite a seemingly contrary decision in Alo v Speaker, Ondo State House of Assembly and Another.[12] The current position thus seems to be that each state must adopt its own freedom of information law while the NFOIA applies to public authorities and bodies of the federal government and of the Federal Capital Territory, Abuja.

It is however contended that this decision is not a progressive human rights jurisprudence. It is clearly a wonder that neither litigant, counsel nor the court has so far thought it fit to principally consider the NFOIA’s jurisdictional scope in terms of its core goal, which is to guarantee the right to freedom of access to information and not to legislate on public records and archives. Considered in this light, the NFOIA would be seen as complementing and amplifying the constitutional guarantee for freedom of expression.

Way forward

Counteracting these impediments requires genuine efforts in certain areas coupled with a strong political will at both federal and state levels. Attention is needed in the enforcement mechanism of NFOIA. This article recommends an independent regulatory body with power to impose sanctions as the main driver of the enforcement regime. Such a body should be able to receive and process complaints of non-compliance without prejudice to the right of the complainants to seek judicial intervention. It should also be able to suo motu initiate legal proceedings against a defaulting public agency. This would among others afford redress to those without the means to afford litigation and keep recalcitrant governmental bodies on their toes, greatly improving compliance with the law. This article recommends the model used in Kenya where the Office of the Ombudsperson (Commission on Administrative Justice) is bestowed with the responsibility of ensuring enforcement of Kenya’s Access to Information Act, 2016.

This article further recommends amendment of the NFOIA to widen its scope to have national legal effect. As a law that seeks to advance the recognition and enforcement of human rights, joint or concurrent applicability and enforcement at all levels of government is recommended rather than a piecemeal or widely different applicability and enforcement regimes at different levels of government. Under the current system, the question of how long it would take all states in the federation to enact their own right to freedom of access to information laws is an indeterminable one. This is certainly not acceptable and there is an urgent need for action.

Conclusion

All the issues confronting the successful implementation of the NFOIA may not be easily exhausted. A good appreciation of the concerns identified in this article and the recommendations are nonetheless germane in any serious effort towards a more robust legal regime for the recognition and enforcement of the right of access to information in Nigeria.

Endnotes

[1] See Constitution of the Federal Republic of Nigeria (Promulgation) Decree 24 1999 (now Cap. C23, Laws of the Federation of Nigeria, 2004) as altered by Constitution of the Federal Republic of Nigeria (First Alteration) Act, 2010; Constitution of the Federal Republic of Nigeria (Second Alteration) Act, 2010; Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010; Constitution of the Federal Republic of Nigeria (Fourth Alteration) Act (Nos 4, 9, 16, 21, & 27) 2017; and Constitution of the Federal Republic of Nigeria, 1999 (Fifth Alteration) Act, 2023. All subsequent references to the Constitution or sections shall be to those of the CFRN 1999 (as altered) except where otherwise indicated.

[2] See CFRN 1999, secs 39(3), 45(1)(a).

[3] Laws of the Federation of Nigeria (LFN) 2004, cap O3.

[4] Official Secrets Act, sec 9(1).

[5] D Kapiszewski & MM Taylor ‘Compliance: Conceptualizing, Measuring, and Explaining Adherence to Judicial Rulings’ (2013) 38(4) Law and Social Inquiry 803 [‘More broadly, compliance by political leaders is a central aspect of the rule of law, undergirding and reinforcing the institutional framework for legality and constitutionality. Further, compliance is often considered to be vital to democracy and the democratic process.’]

[6] World Justice Project, Rule of Law Index 2022 (Nigeria) https://worldjusticeproject.org/rule-of-law-index/country/2022/Nigeria/ (accessed 10 December 2023).

[7] World Justice Project, Rule of Law Index 2022 (Nigeria) https://worldjusticeproject.org/rule-of-law-index/country/2022/Nigeria/ (accessed 10 December 2023).

[8] A Malami ‘2019 Annual report on the implementation of the Freedom of Information (FOI) Act 2011’ (Submitted to the National Assembly, 2020) 5 https://www.justice.gov.ng/foia/index.php/annual-compliance-report (accessed 9 December 2023).

[9] (2018) LPELR-44157 (CA).

[10] CFRN 1999, 2^nd Schedule, Items 14-15.

[11] (2020) LPELR-51263 (CA).

[12] (2018) LPELR-45143 (CA).

About the Author:

Dr Jacob O. Arowosegbe, a solicitor and advocate of the Supreme Court of Nigeria, lectures at the Faculty of Law, Osun State University, Nigeria where he had previously twice headed the Department of Business and Private Law and had also served as sub-dean, students’ affairs. His research interests span issues in constitutional and democratic governance; law and technology; and jurisprudence. He currently or has previously taught courses such as constitutional law, public international law, media law, administrative law, law and medicine, and jurisprudence. He has published articles in several local and international journals such as the Journal of African Law, Global Constitutionalism, Sage Open, and the Journal of Law and Information Technology. He also frequently presents papers in both local and international academic conferences and workshops.