Right of Access to Information - Nigeria

1
Right of Access to Information - Nigeria

• By Edetaen Ojo
• Media Rights Agenda, Nigeria
• edet_at_mediarightsagenda.org

2
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.

3
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.

4
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
  governments Gazette.
• - Second Schedule to the Oaths Act, Laws of the
  Federation of Nigeria, 2004.

5
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.

6
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.

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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.

8
The Campaign for ATI in Nigeria

• The YarAdua 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

9
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.

10
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.

11
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 YarAdua, 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.

12
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.

13
The Campaign for ATI in Nigeria

• The former Presidents 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

14
The Campaign for ATI in Nigeria

• Following Presidents 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.

15
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.

16
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.

17
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

18
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

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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.

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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.

21
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

22
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.

23
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.

24
The Campaign for ATI in Nigeria

• Several indications from the Presidency that
  President YarAdua 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.

25
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

26
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!