Importance of FOI Act in Ensuring Accountability Among the Nigerian Political Class

   By Tai Oguntayo

A lecture delivered by the former Chairman of Ekiti Staye Council of tge Nigerian Union of Journalists (NUJ), Akogun Tai Oguntayo, while serving as Special Assistant to Ekiti State Governor on Political Matters at the Mass Communication Students of the Adekunle Ajasin University, Akungba Akoko, Ondo State on November 2nd, 2011

As a journalist myself, who by the special grace of God was part of the agitation for the FOI Act being the immediate past State Chairman of the Nigeria Union of Journalists (NUJ), Ekiti State Council and as an author of books, I see this as another opportunity to impart in Nigeria’s future leaders.
To understand this lecture succinctly, there is need to give brief introduction of some cogent words in the topic such as Freedom, Information, Act, Accountability and Political class before graduating to what Freedom of Information Act is in its real sense of it.
Webster’s Reference Library Dictionary and Thesaurus defines “freedom” as “being free; exemption from obligation; unrestricted use; a right or privilege”.  It defines “Information” as “something told or facts learned; news; knowledge; data stored in or retrieved from a computer”. “Act” in our own context is defined by this same dictionary as “something done, a deed; an exploit; a law”.  “Accountability” means “liability or responsibility” for one’s action or inaction. “Political class” simply means the ruling hegemony at different strata.
Now we can proceed to the real meaning of Freedom of Information (FoI) Act as related to our topic. The FOI Bill was passed by the House of Representatives on 24th February, 2011 while the Senate also passed it on 16th March 2011 before it was given assent by President Goodluck Jonathan on 28th May 2011.
Nigeria had been operating certain laws right from the colonial eras which were inhibiting the free flow of information until this FOI Act was passed to law.  The FOIA was not easily passed to law by the Nigeria’s political class because they knew the implication and this is why it had to take us 12 good years agitation before it could be passed to law.  Even when this bill was passed into law, it was done with a lot of mutilation or mitigation of its power.
Section 39 of the amended 1999 constitution of the Federal Republic of Nigeria (As Amended) guarantees Right to Freedom of Expression and the Press.  Article 39(1) says; “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”  How this is guaranteed in Nigeria is another bone of contention as some of the repressive and draconian laws of the colonial masters are still in use to protect the interest of those in government.
To enable the press to perform its traditional duty of information dissemination effectively, the United Nations on December 10, 1948 came out with the Universal Declaration of Human Rights (UDHR). Articles 19 of this declaration clearly states that; “everyone has the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.              
Also the organization of African Unity on October 21, 1986 came out with the African Charter on Human and people’s Right (ACHPR) in Nairobi, Kenya declaring in its articles 9 that “every individual shall have the right to receive information (2) every individual shall have the right to express and disseminate his opinions within the law.
One of such laws put in place to protect the interest of the political class is the Official Secrets Act of 1962 which became the Law of the Federation; Official Secrets Act Cap 03 of 2004.  It was modelled after The English Official Secrets Act (1911).  The law prohibited the disclosure of ‘official’ or ‘classified’ information.
It is my view that before we can understand the importance of FOIA very well, we need to know what had been in existence which the FOIA has come to correct and this is why it will be imperative to have a cursory look at the Official Secrets Act Cap 03 of 2004 as it hinders free flow of information. Section one of the Act provides that “... a person who (a) transmits any classified matter to a person to whom his is not authorized on behalf of the government to transmit it; or (b) obtains, reproduces or retains any classified matter which is not authorized on behalf of the government to obtain, reproduce or retain, as the case may be guilty of an offence”
Section 1(2) of the Act further provides that “A public officer who fails to comply with any instruction given to him on behalf of the government as to the safe guarding of any classified matter by virtue of his office is obtained by him or under his control is guilty of an offence.”  We can now see that with all these provisions, there is no way a journalist or anybody can transmit information freely as guarantees by the Article 39 of the amended constitution of Nigeria.
Menace of bad leadership in Nigeria
While examining the importance of the FOI Act, one can understand the reason for the hullabaloo that was associated with the passage by the political class. It is sad that bad leadership is the bane of Nigeria’s progress since independence and this explains why a country that is adjudged to be the 6th oil producing country will still be importing fuel and increasing pump price incessantly.
At this stage I will like to talk briefly on the proposed deregulation by the Federal Government. If the six refineries in Nigeria are repaired and function well, there won’t be any need for importation of fuel.  There won’t be any need for subsidy if the government uses its own expert to excavate oil and not expatriates who buy all the oil blocs and use them for their own advantages.  This is the more reason why people in the area constantly protest and engage in various acts of vandalism and kidnapping.
For us to actually talk about good governance, we must understand bad governance which is the direct opposite of good governance. A society that breeds corrupt and irresponsible leadership will have nothing to offer its citizen other than abject penury and degradation. Chief Obafemi Awolowo in his thought on Nigerian constitution opined that “whatever there is capitalism, the naked self-interest and unabashed group loyalty reign supreme; greed dominates the hearts of men; whilst mutual and destructive antagonism put on the cloak of orthodox business competition.
The military which struck in 1966 claiming to take over from politicians because of “nepotism”, “tribalism”, “embezzlement”, “maladministration” etc, etc has also failed to provide qualitative leadership as despotism became the other of the day while corruption at high place became more pronounced.
The level of corruption under the former military President, General Ibrahim Badamosi Babangida got to a stage that the Financial Times of London correspondent in Lagos, William Kneeling was arrested and forcibly deported from Nigeria for writing about an economic intelligence source in 1990 which revealed that a total of $2 billion received as petroleum oil exports was not accounted for. No wonder we are still being faced till today with deregulation of oil sector.
The conviction of the erstwhile Chairman of the Port Authority, Chief Bode Gorge is an evidence that corruption which has eaten deep into the fabric of Nigeria politics largely dominated by men needs re-examination as to hanging of leadership from men to women. We however gave kudos to the Economic and Financial Crime Commission (EFCC) for logical conclusion of this scam because Nigeria Port has got a long history of financial scandal.
In 1994, a panel set up by the late General Sani Abacha to look into the activities of the Nigeria Port Plc reported that a floating dock was bought by the corporation for about $200 million yet the dock was not used even as the panel saw no reason for the purchase. But what came out of the report? Only Abacha’s cohorts in the inglorious regime can explain.
It is this leadership failure that makes us to look elsewhere that to get good governance, there is need to encourage women to assume various leadership positions so that if men have failed, probably they would be able to make remarkable changes. It has however been regrettably observed that the trial of some women in positions of authority in Nigeria has shown that hardly is there any difference between them and their male counterparts in terms of corruption, dictatorial tendencies and bad management of resources.
When we mention a woman who had ever reached the highest elected political office in Nigeria, the name of Honourable Patricia Etteh readily comes to mind but when one remembers the ignoble manners by which she was removed in office over allegations of corruption and iron-handedness, barely few months of resumption into office of the first female speaker of the House of Representative, it really leaves a shower tastes in our mouths.
In the past, public officers were incapacitated from releasing information to members of the press or interested members of the public as a result of all these laws but the FOIA now protects public officers from any undue harassment for releasing any government secrets to the public.  In short, failure to even provide such information when requested can be a subject of litigation.
The following can be regarded as the importance of the FOI Act in promoting transparency and accountability among the political class;
Any Nigerian can apply for access to public records and information;
Any institution that fails to provide the information required would be fined N500,000;
An applicant can sue the agency that refuses to release the information;
Certain information can be withheld if it could compromise national security, give away a confidential source, be injurious to international affairs, intrude privacy, expose trade secrets etc;
Nevertheless, a court may compel the release of such information if the national interest is considered to be more paramount;
If any public officer destroys or doctors public records before making them available, he risks criminal prosecution and imprisonment of a minimum of one year;
There shall be no liability for a public officer who makes the information available under the Act.  The applicant is also not liable.
Nigeria is not the only country to entrench the freedom of information in the world. Everybody respects the united State of America today and refers to it as the best democracy over the world simply because of welcomes freedom of speech, freedom of the press, freedom of religious, freedom of association, freedom of assembly and freedom of peaceful mass protest.
The U.S congress passed the Federal Freedom of Information Acts (commonly referred to as the FOIA) in 1967 in response to a growing sense that prior federal law was usually invoked as a justification for withholding information, rather than as an affirmation spur to the disclosure of information. If Nigeria is afraid of passing FOIB which the united states did 47 years ago, then we have no moral justification to think of returning to our position as the Giant of Africa.
It is however interesting that of all the 36 states of the Federation in Nigeria, Ekiti is the first and the only one which has domesticated the FOIB which was among the first law enacted by the House of Assembly in June 2011.  It is interesting to note that it was Governor Kayode Fayemi himself who sent this bill to the House as an Executive Bill which he equally signed to law immediately it was deliberated upon and passed by the 4th assembly in the young but vibrant State called the Land of Honour.
At this juncture it is necessary to call on other States not to hesitate in domesticating the FOIA in their respective States if only they want people to believe that they have no skeleton in their cupboard like Fayemi whose human rights background made him to stand tall among other governors across the federation.
One of the fears of our leaders about the FOIA is that if the courts discover that an agency is wrong in not disclosing a document, the courts will order that the document be released and go further to punish the agency with fines. If any public servant knows that his agency will earn fines making him to lose his integrity, he will not want to do something that cannot be subjected to public debate.
The United State took a step further in 1996 with the passage of the Electronic Freedom of Information Act, a law that made it clear that the concept of “public records” included records kept in electronic form and required that federal agencies permit electronic access to the records. Not only that, the U.S has also come up with a law called “Sunshine Laws” which guarantee public access to meetings conducted by executive and administration agencies.
The indication of all these Acts is that all the organs of government, government parastatat, and agencies at all levels will be weary of whatever they discuss at their management meetings since they have it at the back of their mind that the public has direct access to their affairs. Unfortunately, the reverse is the case in Nigeria as we on our part are now mounting rigorous campaign against divulge of official information to the public. If what is classified as “Official Secret” is all about the people’s affair, why the secrecy?
In Nigeria, it is an irony of fate that a nation that is clamouring for probity and integrity is at the same time putting in its constitution confidentially of government information. Public officials hide under its “Official Secret”, “Confidential” etc to perpetrate a lot of atrocities. It is against this backdrop that Bodney Asmolla, a professor of law at the University of Richmond, USA, said “in a truly open culture the normal rule is that government does not conduct the business of the people behind closed doors legislative administrative, and judicial proceeding should as a matter of routine, be open to the public”.
If this FOI Act is put into proper use, Nigeria will be transformed because there are many sections there which can really curb the menace of corruption among the political class. Section 2 of the FOI Act states that “Notwithstanding anything contained in any other Act, Law or Regulation, the right of any person to access or request information, whether or not contained in any written form, which is in the custody or possession of any public, official, agency or institution however described is hereby established.
In fact, section 28(1) of the FOI Act specifically absolves any public officer from civil or criminal liberty under the Criminal Code, Official Secrets Act and the Penal Code for disclosure done in good faith.
Let me sound a note of clarification here that no one is advocating an absolute disclosure of information as there can still be some classified information like those bothering on security matters, financial position of the state and other strategic issues which can enjoy some exemption. Just like the FOIA, the FOIB also made provisions for these exemptions but our leaders here don’t just want it for fear of their past.