FOI: A Long Road Ahead

 By Emmanuel Aziken

Vanguard, (Law & Human Rights page) November 25, 2006

Perhaps no reaction to the Senate’s passage of the Freedom of Information Bill evokes a deeper feeling of emotion than the one that came from General Muhammadu Buhari, the former military Head of State.  In a statement welcoming the passage of the bill, General Buhari now a presidential aspirant under the banner of the All Nigeria Peoples Party (ANPP) said the bill when eventually signed into law would strengthen the nation’s democracy and reconnect the government of the country with the people. “It will strengthen the social contract between the leaders and the led, a contract which crass corruption has breached,” Buhari in words that directly contradicted his own very words and actions as Head of State more than twenty years ago.

In his first interview with a Nigerian newspaper in early 1984, he told senior editors of the now rested Concord Group that he was going to curtail the freedom of the press.  He went on to enact the infamous Decree No. 4, the law which made it an offence to publish any embarrassing information against a public officer. The Public Officers (Protection Against False Accusation) Decree No. 4, 1984 allowed the government to prosecute an individual and or a media house for the publication of any information, even if true, the government considered as embarrassing. The burden of proof in any such case was upon the defendant. 

Two journalists were of course idolized by the public as victims of a brutish dictatorship whose only offense was for publishing a fact that every other journalist could have been proud to do. Following his prosecution, persecution and prison time, Chief Irabor went on to higher grounds in the media profession before venturing into politics in 1988. As a member of the House of Representatives he, alongside two other honourable members, Tony Anyanwu and Jerry Ugokwe, sponsored the Freedom of Information Bill. The Freedom of Information Bill has as its main objective, to open government information to all members of the public. Section 2(1) of the bill declares thus: “Subject to the provisions of this Act but notwithstanding anything contained in any other Act, Law or Regulation, every citizen of the Federal Republic of Nigeria, has a legally enforceable right to, and shall, on application be given access to any record under the control of a government or public institution.” It would be mistaken to assume that the bill was directed only to help the working of journalists.

Section 2(2) of the bill gives latitude to all members of the public to desire information without as much as showing any cause. The section states thus: 

“An applicant herein need not demonstrate specific interest in the information being applied for,” a provision that would give leeway for even members of the civil rights community.

Even though the bill was facilitated by members of the National Assembly, the untiring work of the civil rights community in canvassing the enactment of the bill should be appreciated.

Particularly helpful was the lobby effort of the FOI Coalition comprising journalists, elements of the civic rights community and other interested members of the public who through several campaigns won the support of the members of the National Assembly.

The Bill went through and was eventually passed by the first House of Representatives but Senate inaction made the effort of the House a nullity.  Chief Irabor and Mr. Anyanwu did not seek re-election to the House so it fell on Ugokwe who returned to again sponsor the bill at the beginning of the tenure of the present House of Representatives. The bill was again passed by the House of Representatives last December but what could have been a Christmas package to the civic rights community went awry when the Senate rejected the same bill. The Senate rejection of the report of its Committee on Information on the bill was upon serious objections by some Senators on the unrestrained latitude given to the public to obtain government information.

When the report was presented by Senator Tawar Wada, chairman of the Senate Committee on Information for the consideration of the Senate on December 20, 2005 Senator Jubril Aminu (PDP, Adamawa Central) led the objection to the bill which he described as too intrusive.

He had urged his colleagues to be careful, warning that “we should not jump into passing the bill just because the House of Representatives passed it.”  According to him, the bill if passed as presented could paralyse government.

Senator Iyabo Anisulowo (PDP, Ogun West), it was who cautioned the Senate not to throw away the bill as she observed that “people are watching us and they will say that we are rejecting it because of personal interests.” Her entreaty was waived aside by Senator Nicholas Ugbane (Kogi East) among others who urged the Senate to return the bill to the Committee.  Senator Wada, lawyer who had put in much effort to the bill responded after the majority decision to step down the bill.

“Why this bill suffered a setback now is simply because they didn’t have time to go through the bill and this is because most of us are pressurizing the members that they should take this bill. Everybody complained that they got text messages, pass this bill, pass this bill without allowing the bill to go through the requisite procedure.’ “I want to assure you that the Senate is disposed to passing the bill.  And the Committee I assure you will do exactly what the Senate wants, we will try to reduce the wordings without reducing the substance.” Senator Wada’s passion with the bill it seemed, did not go well with many of his colleagues and it was as such no surprise that the Senate went against its own rule to set up an ad-hoc Committee to again work on the bill.  The five man ad-hoc Committee comprised Senators Victor Ndoma-Egba (SAN) as chairman, Timothy Adudu, Nugu Aliyu, Jubril Aminu, Adeleke Mamora and Udoma Udo Udoma. In going about its work the ad-hoc Committee agreed that the Public Hearing held by the Senate Committee on Information did not take into consideration the views of government agencies who were the object of the bill.

The Committee as such invited fifteen of them to state their views on the bill. On April 27, 2006 eleven government organizations met with the Committee where they gave their views.

Those that met with the Committee were the Head of Service of the Federation, Nigeria Police, State Security Service (SSS), Nigerian Intelligence Agency (NIA), Immigration Service, Economic and Financial Crimes Commission (EFCC) and Nigeria Agency for Food, Drug Administration and Control (NAFDAC), Nigeria Customs Service, Corporate Affairs Commission and Defence Intelligence Agency.

Interestingly, most of the agencies welcomed the bill thought there were some who expressed reservations on some sections of the bill which they asked to be rephrased to protect national security. The NDLEA was the only government agency that rejected the bill outright. Following the first meeting, the ad-hoc committee met with the government organizations during which they did a clause by clause consideration of the bill during which a number of clauses were amended to ensure national security. The outcome from the Committee was not at least too divergent from the original focus. In arriving at its report the Committee said it was guided by similar laws in South Africa (Access to Information Act 2000), the United Kingdom Freedom of Information Act 2000 and the United States Freedom of Information Act 1966 (amended in 2002). Giving his perspective of the bill following the Senate passage, Senator Ndoma-Egba said the bill was the Senate’s mark of commitment to the on-going reforms in the country even in the face of national security. “Let talk basically about the Official Secret Act, I think it will impact directly on the Official Secret Act. The principles of Freedom of Information Bill all over the world is general declassification of information. But you can now make exception for specific classes of information that you feel ought to be protected.”  “Freedom of Information Legislation operates on three basic principles: one, declassification of public information, two, right of access to public information and three, the principle of maximum disclosure. So it will impact significantly on the Official Secret Act.

Though the bill has now been passed by the two chambers of the National Assembly, the two chambers would now have to raise a harmonization Committee to address differences in the two bills. Following that it would pass on to the President for his possible assent.

The presidential assent is indeed where the tenacity of the Coalition is expected to be well tested.

President Olusegun Obasanjo has made a record of not assenting to any private member bill. Even bills introduced by him but modified by the National Assembly have been rejected by him.

Hence, the need for caution as Coalition members could well direct themselves towards divine intervention for a presidential assent.