FOI: Before euphoria sets in

By Mohammed Haruna

The Nation Newspaper, December 6, 2006, Back page

Predictably there has been widespread jubilation among mass media professionals and civil society organizations about the recent passage of the Freedom of Information (FOI) bill by the Senate about six years after it was first presented to the National Assembly (NA). The lower chamber of the NA, the House of Representatives, had passed the bill two years ago.

What remains now for the bill to become law is first, for the two chambers to iron out their differences on the bill and, second, for President Olusegun Obasanjo to sign it.

These two are easier said than done. First, in the middle of the deliberate confusion created by the ruling Peoples Democratic Party around next year’s elections – internal confusion in the selection of its own candidates for legislative and executive offices and the general confusion in preparations for the general elections themselves, as exemplified by the certain failure of the so-called Independent National Electoral Commission to conduct a voter’s registration exercise – members of the NA are unlikely to regard FOI as a priority. Here, it is significant that it took the National Assembly six years to see FOI to its last but two steps to becoming law.

Second, it should be pretty obvious to anyone who knows the president’s famous antipathy towards journalists – probably the single greatest beneficiaries of FOI – that the president would not be in a hurry to sign the bill into law. Obasanjo was, after all, retired general and former Head of State who once lumped journalists along with dogs as undesirable visitors to his Ota Farm. It was little surprise therefore that he rejected all efforts by civil society organizations to persuade him to adopt FOI as an executive bill, in the belief, probably mistaken, that such an adoption would speed up its passage into law.

At any rate, the president, like most politicians is now too pre-occupied with next year’s elections to consider not just FOI, but everything else, including the security and welfare of Nigerians for which he was elected in the first place, as his priority.

However, in the unlikely event that both the National Assembly and the president prove me wrong by expediting the bill into a law, it would be foolish for Nigerians, journalists and non-journalists alike, to think they have a good reason to be euphoric.

Subdued celebration may be in order because any law which seeks to expand the citizens’ access to information about how he is governed is a cause for celebration. But if subdued celebration is in order over the FOI law, euphoria is certainly not. First, there is the fact that laws do not execute themselves. Those in authority do and if they chose to ignore or even break laws, as has become the hallmark of the current regime, then the laws are only as good as the papers they are written on.

I guess it was for this reason that over 29 years ago Malam Adamu Ciroma, the most powerful editor and managing director of the then even more powerful New Nigerian, disagreed with Alhaji Babatunde Jose, the most influential modern-day Nigerian journalist, about the need for a special provision to protect journalists in the 1979 Constitution.

Both Ciroma and Jose were members of the 1977 Constituent Assembly that produced the Constitution. Whereas Jose argued in support of such a provision, Ciroma argued against. Journalists, he said, do not need any more protection than ordinary Nigerians. In any case, regardless of what the law says, he said, journalists would get their rights only if they stand up for them because no one gets his rights on a platter of gold.

Writing in my New Nigerian column that covered the Constituent Assembly at the time, I agreed with Ciroma. Several of my colleagues then disagreed with me on the mistaken notion that American journalism, arguably the freest in the world, was that free because American journalists had special protection.

In fact nothing could be further from the truth. True, the First Amendment of the American Constitution says "Congress shall make no law… abridging freedom of speech or of the press…" but the protection of the First Amendment is extended not directly to journalists but to owners of the press. A publisher may chose to give his editors and reporters enormous powers over what his newspapers publish, but it is a matter of choice, not law. No editor or reporter has a legally enforceable right to have his opinion or story published, just like no reader has a right to have his letter or article published by an editor. Even the so-called right of reply is a matter of convention not law.

The main check against publishers therefore is not the law and certainly not the constitution but the need for them to judge correctly about what their readers want. Any publisher who misjudges his readers consistently risks going out of business.

During the 1977 Constituent Assembly debate on press freedom one could see that most journalists thought the greatest, if not the only, obstacle to free speech was government. Governments, by definition do have enormous powers, but History has shown that Big Labour and Big Business can be equally, and in some cases, even more, powerful.

As the late Chief Bisi Onabanjo, one of the best journalists and columnists Nigeria has produced, said, publishers are all alike whether they are government or private. "I had" he once said, "worked in media owned by individuals, owned by groups and owned by governments. It is the same."

The long and short of all this is that although it is useful to get the law on ones side in the struggle for free speech, it is not enough to do so. Even more important than getting the law on one’s side is the determination to fight for one’s rights, sometimes by ignoring or even defying laws that seek to abridge those rights.

In other words Nigerians, journalists and non-journalists alike, should entertain no illusions about the Freedom of Information law. This is because not only do laws not execute themselves, the practice here, as elsewhere, shows that a favourable law can lull people into an illusion that they are freer than they really are.

Take America, for example. Not only does the First Amendment protect the press, it has had FOI for decades. Yet that has not stopped the Bush administration into becoming the most secretive in America’s history and probably not much more open than, say, the Russian government. One of the most dramatic manifestation of this secretiveness was the blatant refusal of Vice-President Dick Cheney to make public the report by a group he put together at the beginning of the Bush administration to advice it on its energy policy. Many people suspected a conflict of interest in the recommendations of the group which was headed by a chief executive of Enron, the collapsed energy giant.

Cheney appears to have successfully resisted every attempt, including the use of the laws such as America’s own FOI, to force him to disclose the contents of his energy report.

Similarly, the existent of the First Amendment protecting free speech and freedom of association has not stopped the Bush administration, using the manufactured specter of "Islamic terrorism", from ramming through the Congress the Patriot Act which has been universally acknowledged as the biggest threat to the rights of Americans since the American Declaration of Human Rights.

Take Britain, as another example. There the history of its own FOI was even more checkered than Nigeria’s. Whereas Nigeria’s FOI took six years to come close to becoming a law, Britain’s took 31 year. It was first promised by the Labour Party in 1974 but took 27 years to become a bill and another four to become law on January 1, 2005. Since before then Tony Blair, the British Prime Minister, has hid behind his joint crusade with Bush against so-called Islamic terrorism to undermine free speech and other human rights of the British.

By all means let Nigerians, journalists and non-journalists alike, push for an expeditious passage of Nigeria’s FOI into law. We should, however, entertain no illusion that it is the magic wand that will protect and guarantee our access to information about how we are governed, or as has been the case in the last seven years or so, misgoverned.