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How MDAs undermine enforcement of Information act

By Kabir Alabi Garba
29 March 2016   |   4:16 am
Specifically, most Ministries, Departments and Agencies (MDAs) christened as public institutions under the Act are violating Section 29 that mandates them to submit, on every February

senate• Over 90 % violates Section 29 that mandates submission of Report on every February 1
• National Assembly, EFCC, NNPC, security agencies worst culprits
• Sanctions not provided for non-compliant agencies
• FOI Coalition moves to remedy ‘conspicuous gaps in the law’
Almost five years after former President Goodluck Jonathan signed the Freedom of Information Bill into law, over 90 per cent of agencies of government in Nigeria are undermining the effectiveness of the Act, The Guardian investigation has revealed.

Specifically, most Ministries, Departments and Agencies (MDAs) christened as public institutions under the Act are violating Section 29 that mandates them to submit, on every February 1, report of how the agencies are fostering the implementation of the law with emphasis on FoI Requests treatment in the preceding fiscal year, to the Attorney General of the Federation. Worse still, there is no provision in the Act for sanctions for defaulters.

Under Section 29, it is stipulated that “On or before February 1 of each year, each public institution shall submit to the Attorney-General of the Federation a report which shall cover the preceding fiscal year and which shall include:
The number of determinations made by the public institution not to comply with applications for information;

The number of appeals made by persons under this Act;
A description of whether a court has upheld the decision of the public institution to withhold information;
The number of application for information pending before the public institution as of October 31 of the preceding year;
The number of applications for information received and the number of applications processed;
The median number of days taken by the public institution to process the different applications;
The total amount of fees collected by the public institution to process such applications;

The number of full-time staff devoted to processing applications for information, and the total amount expended by the public institution for processing such applications.”

Last February 29, four weeks after MDAs were expected to have submitted their reports, The Guardian sent FoI Request to 50 agencies asking for documents/records that show that submission of report on February 1 had been complied with in addition to trend of compliance since May 28, 2011 when the FoI Act was promulgated.

Within seven days of the receipt of The Guardian’s application (as required by the Act), only four agencies replied, while two others called to ask for re-routing the application to ‘appropriate units’.

Code of Conduct Bureau said it wasn’t aware of this obligation under Section 29 until July 31, 2013 when “a national conference on the Freedom of Information Act 2011 was convened in Abuja where all MDAs were enjoined to submit annual reports to the office of the Attorney General of the Federation in accordance with section 29 of the FOI Act.
“The Bureau has, since 2013 complied with submissions of the annual FoI reports pursuant to section 29 of the FOI Act,” replied Mrs Ijeanuli Arinze Ofor of CCB on March 2, 2016.

Nigerian Communications Commission became aware of its mandate to comply with the provisions of Section 29 of the FOIA immediately the Act was passed into law in 2011. However, “the Commission has submitted three (3) Annual Reports to the office of the Attorney –General of the Federation (AGF) to date,” wrote Yetunde Akinloye and Chinelo Ofomata, Head and Assistant Director, Legal & Regulatory Services of NCC in the reply dated March 8.

The information, however, indicates that NCC has skipped the submission of the report twice. Till last February 1, each agency ought to have submitted five reports.

“The Ministry of Budget and National Planning is aware of its mandate of submitting report on or before February 1 in accordance with Section 29 of the Freedom of Information Act and has been submitting reports to the Office of the Attorney-General of the Federation since 2012 including the current fiscal year report with February 1, 2016 deadline,” Chairperson, MB&NP FOI Implementation Committee, Dr. Anne Nzegwu wrote in the reply dated March 4, 2016.

On its part, the Federal Road Safety Commission (FRSC) that had on March 7 acknowledged the receipt of the FOI Request replied formally on March 14 with documents to support all the submissions made in the reply.

FRSC got to know about the mandate through “an email forwarded to Corps dated 11th January, 2013 from JC Suwa (Mrs) Head, Freedom of Information Unit, Office of AGF and Minister of Justice. The directive was complied with on 22/01/2013.” This year’s report was submitted on January 20, 2016 and the commission has submitted four reports till date

Entitled Application for Information/Records/Documents Under the Freedom of Information Act, the letter from The Guardian applied “for copies of documents, letters and records that provide answers to the following questions:
How and when were you aware of your agency’s mandate (submission of report on or before February 1) under the provisions of Section 29?

Has February 1, 2016 submission of report to the Attorney-General been complied with?
How many of such reports were submitted since May 28, 2011 when the FOI Act was promulgated?

While the collation of the 2016 Annual report by the Ministry of Justice is ongoing, information on its FOI website supports the assumption that five annual reports ought to have been submitted by the MDAs.
Indeed, the AGF has broad oversight responsibility over all public institutions under the Act. He or she must also ensure that all institutions to which the Act applies comply with the provisions of the Act.

The AGF is required to submit, on or before April 1of each calendar year, annual reports to the National Assembly on how the law is being implemented and complied with. The AGF’s report must include for the previous calendar year a listing of the number of cases arising under the Act, the exemption involved in each case, the disposition of such cases, and the cost, fees and penalties assessed. This report must also include a detailed description of the efforts taken by the Ministry of Justice to encourage all government or public institutions to comply with the Act.

Responding to The Guardian’s application for information on the trend of submission of reports by the agencies of government, the Ministry of Justice said “Sixty (60) public institutions submitted their reports last year being the highest in four years of implementation; 52 public institutions submitted annual compliance reports in 2014; Thirty Two in 2013; and 16 in 2012.”

The ministry decried that the violators could not be sanctioned since “there is no provision under Section 29 that provide for sanctions for defaulters,” in response to why poor compliance level of the MDAs remained unchecked.

The Ministry however declined to reveal the identities of MDAs that met the deadline of February 1, saying “it will be made available on request after submission to the National Assembly in April.”

Chairman, Board of Governors, Freedom of Information Coalition, Nigeria, Dr. Walter Duru lamented what he described as “an embarrassingly low compliance level with the provisions of the Act by Ministries, Departments and Agencies (MDAs), especially, as it concerns some of the critical segments, such as the Proactive Disclosure, which suggests when information is made available to the public on the initiative of the public institutions themselves, without anyone having to request for it. Another critical section is that of annual FOI compliance report to the Office of the Attorney General of the Federation, which compliance level is abysmally low.”

 National Assembly

National Assembly

FOI Coalition Chairman referenced the statistics of compliance by the MDAs as published on the website of Justice Ministry and declared, “This is unacceptable and something drastic is being done. We await the report of the 2015 FOI compliance from the Attorney General of the Federation in the coming weeks.”

Dr. Duru also held the citizenry responsible for the very low use of the Act. “In any economy, Freedom of Information is a fundamental indicator of economic development and progress, civic engagement and a properly functional democracy. The Act is a promising start in ensuring good governance and rule of law in Nigeria. It is therefore imperative that Nigerians take advantage of the FOI Act to demand for transparency and accountability from public institutions.

According to him, the factors militating against effective use of the act include, but not limited to: “ignorance on both the side of the public institutions and the citizenry, the culture of impunity in public service, corruption, the absence of punitive sanctions for failure to comply, absence of a Coordinating/Steering Committee for FOI implementation, funding, poor capacity, among others.”

Tackling these challenges, Duru said his coalition had appraised the situation, some gaps identified, while efforts are being made to close the gaps. Among the activities, he said are capacity building, sustained advocacy, increased use of the Act, multiple litigations, collaborations and partnerships, among others.

Upon his emergence as Chairman, Board of the Coalition in 2015, he said a strategic session was held where a 5-year strategic plan on FOI implementation was developed. “The plan is our guide today,” Duru noted.

And pursuant to the objective of ensuring the vigorous implementation of the FOI Act, between November and December, 2015, with support from the Justice for All Project of the British Council/DFID and in collaboration with the Federal Ministry of Justice and Media Initiative Against Injustice, Violence and Corruption-MIIVOC, the Coalition organized Roundtable sessions for Ministries, Departments and Agencies of government (on one hand) on increased compliance with the FOI Act, and zonal sessions for Civil Society organisations, targeting Lawyers, Journalists and core CSO stakeholders on the other hand.

He explained further, “First was the MDAs FOI Roundtable, held from 17th- 18th December, 2015, at Denis Hotel, Wuse 2 Abuja. The MDAs event was then followed by other sessions in Enugu, Lagos, Abuja etc. The decision to hold zonal sessions was informed by the need to decentralize the process of the implementation and get the citizens to be more actively involved.

“The engagement sessions served as an eye-opener for both the participants and the organizers. The bottom line is that there is very low capacity on the use of the Act. Even representatives of the MDAs are not left out in the capacity gap challenge. The need to step down the engagements to states was also emphasized.

“A few weeks ago, I led a delegation of the Coalition to the office of the Attorney General of the Federation and Minister for Justice, Abubakar Malami SAN. We had an extensive meeting with the Honourable Attorney General and far reaching understandings were reached. It will interest you to note that some of our recommendations to the Minister are already being fine-tuned for possible implementation. We are in regular touch and I can assure you that the present Attorney General is committed to FOI implementation.”

The Coalition is a network of over 180 civil society organizations in Nigeria comprising of civil rights, grassroots, legal, media and community-based Non-Governmental Organizations campaigning for the effective utilization of the Freedom of Information (FOI) Act to ensure accountability and transparency in public institutions in Nigeria.

Its vision is to have a strong and effectively implemented Freedom of Information Act which creates an open society with a culture of transparency and accountability.
“Individually and collectively, members have not only been using the Act, but have been at the fore front of campaigns for its increased use. We have a network of lawyers across the country handling issues of litigation and judicial reviews in cases of denial of information,” Dr. Duru disclosed.

According to him, among the institutions that are notorious for refusal to respond to FOI requests are: the National Assembly, Economic and Financial Crimes Commission-EFCC, Imo State Oil Producing Areas Development Commission-ISOPADEC, law enforcement agencies, and the Nigerian National Petroleum Corporation- NNPC, etc.

“We are reviewing our strategies and shall stop at nothing in bringing them to be accountable to Nigerians,” he boasted, while insisting that “Transparency is a great disincentive against corruption. The FOI Act is a great instrument for the fight against corruption in Nigeria. A strengthened FOI regime will enhance citizens’ demand for accountability and prevent/check corruption in Nigeria. No doubt, a strengthened FOI regime will enhance citizens’ demand for accountability and prevent/check corruption in Nigeria.”

Coincidentally, some of the agencies he described as ‘notorious for refusal to respond to FOI Requests’ are on the list of 50 MDAs tracked by The Guardian.

Asked if certain amendment could be proposed to fill the gap identified especially in the absence of sanctions for non-compliant agencies, he said, “We have amendment as one of our activities; but it is not a priority at the moment. We are more interested in testing the law, with a view to identifying all the gaps. It is only when the Act is properly tested that a robust and informed amendment proposal will be effective.

“The absence of effective sanctions is no doubt, a very major challenge. However, at the moment, securing a Court pronouncement against an erring organisation will naturally amount to a sanction, as disobedience to Court orders have grievous punishments. This is however not enough. The absence of sanctions remains one of the most conspicuous gaps in the law.”

On the amendment, Dean, College of Social and Management Sciences (COSOMAS), Caleb University, Imota, Lagos, Prof. Nosa Owens-Ibie shared similar view. He emphasized the need to “first assess how well the law has changed the landscape which defined its necessity based on real scenarios of implementation since its enactment.”

According to Prof. Owens-Ibie, who is also General Secretary, Association of Communication Scholars & Professionals of Nigeria (ACSPN), the assessment will require “a systematic study so the way forward could be better charted to achieve the goals of good governance, and desirable change. There is clearly the need to chart new paths of implementation but that has to be based on evidence.”

His assessment of the performance of the Act in the last five years of its enactment has two sides. “The first is about the custodians of the public information to be accessed (both the institutions and the officials expected to implement), while the other is about those who seek to access such information. Although there is some attempt to track levels of access and FOI desks are springing up, it appears they are still functioning below the logic which drove the enactment of the law. The very slow response to the demands of domestication of the Act is a general source of concern although there is the counter argument that there doesn’t appear to be enough enthusiasm and persistence on the part of those who should be accessing such information, likely due to social, economic and political pressures,” the communication scholar inferred.

As one of the few civil society organizations that have been driving the effective implementation of the law, Executive Director, Socio-Economic Rights and Accountability Project (SERAP), Adetokunbo Mumuni said “Nigerians in general have not been making adequate use of the Freedom of Information Act to ask necessary and pungent questions from public officials and public institutions/agencies that would engender transparency and accountability as far the use of public resources is concerned which actually is the object and purpose of the act.”

The legal practitioner, whose organization secured a court judgement recently to access information on Abacha loot recovery, insisted that “the Freedom of Information Act will not perform on its own, it is Nigerians that would continue to test its provisions and the more the provisions of the Act is used and tested, it is then we will know the usefulness and performance of the Freedom of Information Act. As far as I’m concerned, only an infinitesimal proportion of Nigerians know about the existence of the Freedom of Information Act.”

SERAP’s experience in its numerous efforts at using the law, according to Mumuni, has been varied, intriguing and interesting.
He explained that government officials are yet to appreciate “the fact that with the introduction of the Freedom of Information Act, opaqueness and secrecy in government business and activities must be a thing of the past.

“Another experience is that more often than not, public officials or MDAs to which requests are made would almost want to take eternity to respond to the request rather than respond within the seven days time frame stipulated by the Freedom of Information Act. Another common experience is that when court cases are eventually filed, it has become common place and the consistent practice of lawyers on the side defending the MDAs to raise some technical issues as points of preliminary objections rather than responding to the substance of the matter.

“To be sure, the substance of the matter in a case filed pursuant to the Freedom of Information Act is whether the applicant is entitled to the information requested or whether the information requested falls within the ambits of the exemptions created by the Freedom of Information Act itself.”

Report of Presidential Committee on the Restructuring of Federal Government Parastatals, Commissions and Agencies submitted in April 2012 puts the figure of ministries, departments and agencies of government at 541.