Right of Access to Information
- Nigeria
By Edetaen Ojo
Media 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 Nigeria
The 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!