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Date Published: 07/29/10

NASS: Where is the FOI Bill? By Idumange John

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The freedom of the expression and the press is one of the bastions of democracy and good governance. In fact, the objective and accurate dissemination of information by the press in a democratic system is as important as oxygen to the life of a man. It was for this reason that the Freedom of Information (FOI) Bill featured prominently in the second tenure of the Obasanjo administration but its passage was truncated by the self-aggrandizing tendencies of members of the National Assembly (NASS).

Regardless of the ideological differences in the various socio-political systems of the world, press freedom - a logical extension of man’s inalienable freedom of expression is today a universal right. It is universally guaranteed in Article 19 of the Universal Declaration of Human Rights and enshrined in the written constitutions of almost all countries around the world. In Nigeria, it has been ratified and enacted in CAP 10 Laws of the Federation of Nigeria (1990). In lands where unwritten constitutions are operational, the freedom of expression is observed not as a mere convention but is regarded as sacrosanct and indispensable for human survival. That is why the freedom of information is internationally guaranteed in the United Nations Charter, and adopted by most regional and continental organizations.

The freedom to seek information is guaranteed by a number of international instruments. Nigeria is signatory to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. It is also guaranteed in Article 9 (1) of the African Charter on Human and Peoples Rights, which is part of Nigeria’s domestic law under the African Charter (Ratification and Enforcement) Act. At its Summit in Maputo, Mozambique in July 2003, the leadership of the African Union adopted a set of Principles elaborating Article 9 of the African Charter which, among other things, declare that the African Charter entitles “everyone to access information held by public bodies” and to “access information held by private bodies which is necessary for the exercise or protection of any right”.

It is therefore surprising that most public institutions in Nigeria still operate under the veil of secrecy, which, insulates government and its actions from public scrutiny. At present, there exists no law, which permits access to official information. On the contrary, there are numerous legislations containing clauses forbidding the disclosure of official information by public servants, and these laws have their attendant penal sanctions. Some of these laws with secrecy clauses include the Evidence Act, the Federal Commissions (Privileges and Immunities) Act, the Public Complaints Commission Act, the Architects (Registration etc) Act and the statistics Act.

Other means by which the government perpetrates secrecy include the use of official secrets Acts and Criminal Code, which require documents to be marked “Classified,” “Secret” “Top Secret” or “Confidential”. In addition, certain categories of government officials are required upon appointment to subscribe to an oath of secrecy under which they undertake not to disclose any information which comes to them in the course of their performance of their official duties unless specifically authorized to do so. In most government parastatals, management personnel are compelled to take an oath of secrecy in order to keep secret what may be termed confidential information about their operations. Even the courts of law are often precluded from compelling the disclosure of such information.

Freedom of access to government information goes beyond the media’s desire to play watchdog. The lawyer’s interest in representing clients, the librarians need to be supportive of inquiring patrons, or the historian’s desire to learn more about the workings of government. It goes to the heart of democracy. It is the best protection individuals have against rulers, the best way of knowing that the laws are enforced honestly, even handedly, and efficiently. Freedom of access promotes citizen participation and empowerment. When those affected by regulations or rules understand such laws, they will be more willing to obey them if they are accessible. Also, the quality of government decisions usually would be better if they admit public input in the process of developing them. Legalization of access to information confirms public ownership of government information, and that it is gathered or created, maintained and used for public purposes. More often, greater access to government information is pragmatic, as more information means more efficient resource allocation. For example, before the Obasanjo administration, allocations made to States and Local Governments (LGA) were not disclosed hence only State Governors and LGA Chairmen were privy to such monies. Secrecy at the level of governance is a recipe for corruption and this invariably carries adverse social and economic consequence for the population.

Though press freedom evolved in capitalist liberal democracies such as England under libertarianism, (as part of parliamentary and congressional or presidential systems based on individual liberty and private enterprise). The social responsibility theory originated in the United States in the 20 th century, although it could be regarded as an Anglo-American concept, it stipulates that since freedom carries concomitant obligations, the media of mass communication will enjoy a privileged position, and must assume obligation for social responsibility, and if they do not, someone must ensure that they do.

Unlike in the capitalist liberal democracies, the perception and definition of press freedom in the socialist world such as Cuba, China, North Korea, Albania, etc. is based on the Soviet Communist theory of the press which developed in the Soviet Union after the 1917 Bolshevik Revolution. Under the theory which evolved from Marxist – Leninist – Stalinist thought, the chief purpose of the press is to contribute to the success and continuance of the socialist system, especially the party ideology. The Soviet media theory itself derives from the basic principles of “scientific socialism.

While admitting that there are developing countries that fall in between two extremes, analysts believe that developing nations are trying to model their systems along the Western libertarian lines. After perestroika and glasnost even the core socialist enclave has started to modify the hard-line Marxist-Leninist concept of veil of secrecy. Thus no matter the ideological permutation of any nation, there is consensus that a free press is an indispensable aspect of democratic tradition.

In nations where the freedom of information is guaranteed, there is a statutory presumption that all government records are open to the public, since government itself is supposed to be conducted in the benefit of the people, and only those records specifically exempted in advance by the Act or other statues may be withheld. More so, individuals are empowered to request to see that government records about themselves are accurate and are not being misused. It also implies that no matter how embarrassing or inconvenient a disclosure might be, an agency cannot withhold information from a legal person who requests it. Accordingly, legal persons can ask the courts to compel a government body to release information illegally withheld.

In addition to its democratic value, individuals and organizations use the freedom of information (FOI) laws for various economic and social purposes, including access to information on government contracts, regulatory enforcement data, health and safety reports, and even community historical materials. Public sector information plays a fundamental role in the proper functioning of markets and the free circulation of goods and services to people. Without user-friendly and readily available administrative, legislative, financial and other public information, economic actors cannot make fully informed decisions. Therefore, for Nigeria to make headway in attracting Foreign Direct Investment (FDI), the free flow of information is a sine qua non.

Government officials may want to argue that even without legislation on the freedom of information, interested person can still have access to government information. There may be a plethora of publications sent out to depository libraries, rains of press releases, reports and statements from government officials, and piles of rules and opinions and orders and manuals that are made available through various government agencies, but without FOI legislation, access would be limited to what government officials are willing to release.

The right to seek, receive and impart information is not merely a corollary to freedom of opinion and expression; it is a right in and of itself. As such, it is one of the rights upon which free and democratic societies depend. It is also a right that gives meaning to the right to participate, which has been acknowledged as fundamental to, for example, the realization of the right to development. Public institutions have an inherent obligation to disclose information and every member of the public has a correspondent right to receive such information; “information” includes all records held by a public body, regardless of the form in which it is stored.

As an acceptable minimum, the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information; the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government. A refusal to disclose information may not be based on the aim to protect Government from embarrassment or the exposure of wrongdoing; a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which do not harm the legitimate interest of government.

All public bodies should be required to establish open, accessible internal systems for ensuring the public’s right to receive information; the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal.

It appears, the honourable men have confined the FOI Bill to the mortuary because it is likely to work against the self-perpetuation bid of a great many of them who are bent on foisting themselves on the masses. The only practical way the National Assembly can demonstrate its commitment to freedom of access to information and freedom of expression is the immediate passage of the FOI bill which is generally believed to be the cornerstone of democracy. If Nigeria is determined to reform her electoral system, power sector and other reforms that accompany good governance, the passage of the FOI bill is no longer negotiable and the masses would hold the NASS accountable for truncating the passage of the bill.

Idumange John, is Fellow, Institute of Public Management, Nigeria

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