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MDAs compliance with FoI act in Nigeria: Matters arising

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Last week, Ministries, Departments and Agencies (MDAs) of the Federal Government met in Abuja on increased compliance with Nigeria’s Freedom of Information (FOI) Act. The Roundtable/Training was put together by Justice For All (DFID), in collaboration with: Media Initiative against Injustice, Violence and Corruption (MIIVOC), Freedom of Information Coalition in Nigeria (FOICN) and the Federal Ministry of Justice. 

The meeting became necessary, following an extremely low compliance level with the provisions of the FOI Act in Nigeria. It is expected to be replicated in the six geo political zones of the country in the coming weeks, targeting Civil Society, Media and Legal practitioners in Nigeria on increased use of the Act.

Speakers at the event took turns to justify the need for a functional Freedom of Information regime in Nigeria, with a view to building an open society.

In his opening remarks, Justice for All Anti-corruption Manager, Emmanuel Uche spoke on the need for public officers to facilitate openness and transparency in government.

“As government functionaries who work at various levels in the MDAs, you must understand that your role is to facilitate open and transparent government, ensure that people have access to information and provide the means for them to ask questions, request necessary information to serve their interests and to hold government accountable. 

“This Act serves the above noble democratic ideal. Transparency and accountability can only be achieved through effective implementation and compliance with the FOI act and is the central theme of President Muhammadu Buhari’s administration. It is therefore the responsibility of MDAs to comply with the laws of the federation and the FOI ACT is no exception.”

“We identify some obstacles in the effective implementation of the law as lack of understanding of government business in a democracy, lack of detailed or no knowledge about the FOI Act, misunderstandings about the Act and the role of government in the management and disclosure of information; citizens role in gaining access to information held by government and its institutions, the technical details of the FOI Act, as well as the responsibilities of government officials as prescribed by the Act, among other things. 

“The Justice for All (J4A) programme has taken these issues into consideration and has put together this training programme to help participants understand the issues around the FOI Act, ways to implement it effectively in the MDAs, and the responsibilities of FOI Officers.”

In his Overview of the FOI Act, Lanre Arogundade of the International Press Center, Lagos, described it as one of the best things that has happened to the country and urged all Nigerians to take advantage of its provisions to ensure accountability in public institutions.

In her presentation on the FOI Act and Bureaucratic Processes in Nigeria, Director of the FOI Desk at the Federal Ministry of Justice, Mrs. Stella Anukam explained the steps taken by the Ministry to strengthen the implementation of the Act, and urged all public institutions to ensure the setting up of FOI Units, headed by Senior officers in their organisations.

In his paper titled FOI Act and the Burden of Obscurity in Nigeria, Chairman, Board of Governors, Freedom of Information Coalition in Nigeria, Walter Duru argued that despite some identified gaps in the law, the FOI Act is too good a legislation to slide into obscurity. He assures participants that the FOI Coalition will stand by any public office holder harassed or victimized by their employers on FOI related issues.

“Transparency is a great disincentive against corruption and other unethical practices. FOI law is a great instrument for the fight against corruption in Nigeria. There is therefore no doubt that a strengthened FOI regime will enhance citizens’ demand for accountability and check corruption in Nigeria. Nigerian Public Servants must therefore rise to the challenge of entrenching an open society, by complying with the Act, in order to move our country forward.”

Adding his voice, former Commissioner for Information in Imo State, Professor Emma Owums- Owuamalam, in his paper on ‘Mainstreaming FOI into Extant Developmental Policies in Nigeria: Issues and Prospects’, explained that the FOI promotes “proactive explanation instead of reactive rebuttals.”  

“A transparent performance supports accountability through awareness creations for credible and sustainable national development. Public institutions like Ministries, Departments and Agencies should know the provisions of the FOI. Public officers should distinguish the FOI from the Official Secret Act of 1963 and realise their protection under the FOI. Public officers should realise that performance can be distorted in the absence of compliance to the FOI.”

Also, a Professor of Communication, Desmond Wilson of the University of Uyo, in his ‘Commentary on Donor Role on FOI Implementation in Nigeria, called for caution on reliance on foreign donor organisations, even as he made a case for local funding.

“In doing this, we should not be dependent on foreign donors alone. We should begin to develop a local strategy for funding projects like this. Foreign aid always has its negative side because most times, donors insist on rules which ignore local sensitivities assuming for the beneficiary (the receiving country) a certain universal standard of culture which could become a source of irritation to the people.”

Speaking on ‘Annual Compliance Report and Proactive Disclosure as critical compliance elements of the FOI Act’, Emeka Ononammadu of Citizens Center for Integrated Development and Social Rights, called for regular training and retraining of relevant management personnel of public institutions to enhance their capacity on FOI issues.

Emeka Igwe, in his submission on the implications of the FOI Act in Nigeria’s anti-graft war described the Act as a veritable tool for Nigeria’s anti-graft war and urged all to embrace it.

On the issue of domestication of the Act by States, Igwe described it as fraudulent, insisting that the law is binding on all levels and arms of government.

It is on record that Nigeria’s Freedom of Information (FOI) Act was passed into law on May 28 2011, after the longest legislative debate in the history of Nigeria. The FOI Bill spent over 11 years in the legislative process before it was finally signed by former President Goodluck Jonathan.

The law was passed to enable the public to access certain government information, in order to ensure transparency and accountability. It gives every Nigerian a legal right of access to information, records, and documents held by government bodies and private bodies carrying out public functions. It applies to all arms of government: the Executive, Legislative and Judiciary as well as to all tiers of government: Federal, State, and Local governments.

No doubt, an FOI Law is one of the most important ways of achieving transparency & accountability in governance, which can in turn serve as a disincentive for corrupt practices or help to reveal corruption. It enables citizens to hold the government accountable in the event of the misappropriation of public funds or failure to deliver public services.

Before now, Nigeria had no law which guaranteed citizens access to public records and information. Many Nigerian laws have secrecy clauses prohibiting the disclosure of information, for instance, the Official Secret Act, the Criminal and Penal Codes, among others. Most public servants are made to swear to oaths of secrecy when employed and the general consequence of these is an entrenched culture of secrecy and arbitrariness in government institutions.

However, the FOI Act does not ordinarily apply to private bodies, such as private companies and non-governmental organisations, but can be applied to such bodies if certain conditions are met. These conditions are: where the entity performs a public function; where the entity provides a public service and where the entity utilizes public funds.

There is no limit to the requests that could be made under the FOI Act, save for the recognized exceptions. Information that could be sought include : Reports of audits carried out, Results of tests or analyses conducted, Reports from the inspections of products, goods & services, frequency of visits to premises undertaken by oversight or regulatory authorities to institutions or companies covered by them.

Others are reports of audits carried out, results of tests or analyses conducted, reports from the inspections of products, goods & services, frequency of visits to premises undertaken by oversight or regulatory authorities to institutions or companies covered by them, reports of investigations carried out on any issue, actions taken as a result of findings from any investigation, number of complaints reported or received, as well as actions taken on complaints, among others. 

Such information can be used to establish patterns of behaviour, breaches of rules, cases of inducement, among other uses.

The issue of fear of harassment or victimization of staff of MDAs by their Management following release of Information under the FOI Act does not arise. The Act protects serving public officers against any adverse consequences from the unauthorized disclosure of certain kinds of official information. It further regulates conflicts between its provisions and those of other legislations, such as the Criminal Code, Penal Code or Official Secret Act that prescribe criminal penalties for actions connected to the disclosure of Information.

For instance, section 27 of the law provides that no civil or criminal proceedings may be brought against an officer of any public institution, or against anyone acting on behalf of a public institution, for the disclosure in good faith of any information pursuant to the Act.

Section 30 (1) further provides that the Act is intended to complement, not replace the existing procedures for access to public records, and is not intended to limit public access to information.

One critical compliance element of the Act is Proactive Disclosure, which suggests when information is made available to the public on the initiative of the public institutions themselves, without anyone having to first submit a request for them. It remains one of the statutory obligations under the FOI Act that public institutions must meet.

Another critical section of compliance is that of annual FOI compliance report to the Office of the Attorney General of the Federation, which compliance level is abysmally low.

Section 29 of the Act enjoins all Public Institutions to submit to the Honourable Attorney-General of the Federation a report containing details of requests received and matters arising on or before February 1st each year. Furthermore, the section also requires the Honourable Attorney-General of the Federation to publish the report electronically and in print and submit copies to the relevant Committees of the National Assembly on or before April, 1st of each year.

Regrettably, out of the hundreds of public institutions in Nigeria, in 2014, only sixty (60) submitted their annual reports, being the highest in four years. Findings reveal that, among other reasons, there is low capacity on the procedure for writing of reports, as well as the provisions of the Act.

A report on the FOI Website of the Federal Ministry of Justice (www.foia.justice.gov.org) shows that in 2013, fifty two (52) institutions submitted; in 2012, thirty two (32) submitted, while in 2011, only sixteen (16) public institutions submitted their annual reports to the Attorney General’s office.

Worthy of note is the fact that anyone requesting information need not demonstrate a special interest in the information. The Act, among other things, sets time limits within which government and public bodies must release information requested and provides for judicial review where access to information is denied. The time provided is 7 working days.

However, there are certain categories of information that are exempted from the general right of access. They include : Defense/security matters, the conduct of international affairs, Law enforcement investigation, Trade secrets, Financial, commercial, technical and scientific information of economic value, third party information, Solicitor/client privilege, among others.

There is no doubt that a strengthened FOI regime will enhance citizens’ demand for accountability and check corruption in Nigeria. Nigerians must therefore take advantage of the FOI Act to demand for accountability from public institutions.

Stakeholders must therefore rise to the challenge of sensitizing top management personnel and CEOs of public institutions to build their capacity and to buy-into the Act.

There is also need to introduce an Award/Reward system to encourage both the demand (Civil Society) and Supply (Public) sides on implementation of the Act.

The Federal Ministries of Information and Justice, National Orientation Agency, Office of the Head of Service of the Federation, Freedom of Information Coalition in Nigeria and other Civil Society actors, the Federal Executive Council and all other stakeholders should take deliberate steps to ensure effective implementation of the FOI Act.

There is also the need to increase public awareness and enlightenment on the FOI Act. Steps should also be taken to address the gaps identified in the law, with a view to strengthening it.

Nigerians should take advantage of the FOI Act to track budgets, and ask relevant questions on how public funds are spent. FOI training should be made compulsory for all political appointees.

A four-way-link of: Awareness, sensitization, mobilization and participation will help move the FOI implementation forward.

All hands must be on deck!

Chike Duru

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