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Why government’s move against memo leakage may fail, by experts

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FolasadeYemi-Esan


• ‘Officials must state why certain info can’t be made public’

A current move by the Federal Government to stop the leakage of official communication may not yield the desired result, some experts have noted.
Apparently worried about the alleged leakage of official memos, the President Muhammadu Buhari administration has decided to come hard against future infractions. Accordingly, the Head of Civil Service of the Federation (HOS), Dr. FolasadeYemi-Esan has warned public servants against leaking official documents, threatening that hard times await defaulters.

But a retired permanent secretary, who spoke to The Guardian in Abuja, said the advent of smartphones was to blame for the leakages. The retired bureaucrat, who was in charge of Common Services in the Office of the Head of Service before his retirement, also blamed some Nigerian journalists who want to break certain news first as another reason for leakage of government memos.

‘’People just want to play funny. Like social media, people want to be the first to break the news. Don’t forget that not quite long, even Mr. President’s broadcast speech was leaked, so everywhere you are, somebody can just snap a memo and send out. Presently, you don’t need to take the memo out itself to make any photocopy, civil servants doing this can easily carry out the act. It could even be while their boss visits the toilets, before he or she returns, the deed would have been done with a snap of the phone’’.

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The former permanent secretary, who commended the current Head of Service for reintroducing sanctions against erring officials, said the leakages were becoming embarrassing to the government.

Those who want certain information to be kept secret refer to the existence of the Official Secrets Act in the nation’s constitution which “prohibits the unauthorised transmission of any information that has been classified by any government branch as being prejudicial to the security of Nigeria”.
A public affairs analyst and management consultant, Wale Oluwade told The Guardian that the lines between what should be classified or made public were very blurred.

“Often, governments have had to decry the activities of leakers of what they term ‘sensitive’ information. What constitutes sensitive information? Who decides what is to be classified as sensitive information? What is the position of the law on this knotty issue? How should media organizations deal with this dilemma and straddle the delicate lines between the public’s right to know and be informed and the undermining of governments activities.

“The lines are grey and often blurred between the attempt of overzealous state officials to hide their true activities from the public and the right of the public to know what government does or is doing on its behalf.”

He referred to the Official Secrets Act (OSA) 1911 and 1989 as amended, which forbade the unauthorized transmission, obtaining, reproduction and or retention of any classified matter. This, he said was essentially an attempt by the colonialists to muzzle and suppress freedom of local media, owned and operated by those clamouring for independence in the Nigerian colony.

Oluwade recalled that in 2011, President Goodluck Jonathan signed into law the Freedom of Information Act (FOI) 2011. “This superseded the OSA Act and it guarantees the legal rights of every person to access information, records, and documents held by government bodies and private bodies carrying out public functions.”

However, the FOI Act, as expected, has certain exceptions, especially to “unauthorized release of official information by former and current employees of security agencies and such other government agencies. Breaching the provisions of this section imposes serious penalties, including long incarcerations, depending on the gravity of the breach.”

He noted that the challenge between the provisions of the law and the reality is that “most often, governments have acted as if they are above the people they govern. And this isn’t peculiar to Nigeria. Government officials everywhere believe everything they do is deemed classified or secret and the public has no right to know.”

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He argued that this position, besides being inherently false and unlawful, has been the main reason media organizations resort to informal channels to source information on government activities. To him, the way a responsible government can deal with the activities of leakers is to be open, honest and transparent in its activities.

Oluwade further noted that beyond the alleged illegality of government and its officials hiding information from the public, the hallmark of a democratic environment is openness, transparency and accountability.

“These aren’t just mere slogans and buzzwords that appear in government sanitized releases, but essential guardrails against descent to totalitarianism and fascism.

“It was Thomas Jefferson who stated that ‘He would rather live in a society with a free press without a government than a society with a government without a free press.’

I agree with him totally. All governments in a democracy, no matter how well-intentioned, exists only to serve the interest of the people. Anything else isn’t democratic”.

The analyst noted that: “In the United States of America, a more advanced democracy, for example, the presidency is often embroiled in sensational incidences of leakages of vital information.

“This is not peculiar to the current administration of President Donald Trump. President Bill Clinton and Richard Nixon were two examples. Nixon was forced to resign after his involvement in the Watergate scandal was exposed by the press while attempt by Clinton to hide the sexual assault case levelled by Monica Lewinsky was leaked and exposed by the press.

“President George W. Bush was allegedly confronted with a barrage of leaks during and after the invasion of Iraq, especially the fiasco attendant to the fictitious nature of the key piece of evidence, that is, the accusation of possession and stockpile of weapons of mass destruction (WMD) by Saddam Hussein.”

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Oluwade said the media organizations and their sources were later proved right that the Bush administration had corralled Britain and other allies into war on a phony piece of intelligence. And it seemed this was deliberate. In this case and several others, he observed, it would appear the media owe a duty to access information on governments activities and make this available to the public.

When the government is transparent, through regular briefings and scheduled media interactions, he pointed out, the incentive for leaks is greatly reduced.

In Nigeria, President Buhari has battled, since his inauguration in 2015, with an illness that has remained undisclosed till date. He has spent several months receiving treatment in the United Kingdom without any information as to the nature of the illness. The official government response is that the information is personal to the president

“Many believe this is a standard attitude of government in Nigeria that feeds the mushrooming of informal and ‘illegal’ sources of information. The issue of corruption and official sleaze are also major reasons officials of government becoming overly sensitive about releasing information to the media.

“In 2017, a leaked memo from Minister of State for Petroleum Resources, Ibe Kachikwu, showed that irregularities in the state-owned oil giant remain entrenched, despite official vows to root out the ‘cancer’ of graft.” Kachikwu had written a secret memo to President Buhari to report questionable practices in the state-owned Nigerian National Petroleum Corporation (NNPC).

The memo that was leaked to the public detailed five NNPC contracts with a total value of $25billion that “were never reviewed by or discussed with the board.” “I have been unable to secure an appointment to see you despite very many attempts,” Kachikwu had added in the leaked letter to Buhari, who doubled as the oil minister. Kachikwu eventually lost his position when he was not re-appointed.

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The NNPC, working in joint ventures with foreign oil majors, accounts for more than half of Nigeria’s daily oil production of about two million barrels per day, estimates Benjamin Auge, a researcher associated with a French think tank, the French Institute of International Relations (IFRI).

One of the biggest graft case in Nigerian history came to light in 2014 when the Central Bank governor,Sanusi Lamido Sanusi, alleged in a leaked memo that the equivalent of $18billion had disappeared from state coffers between 2012 and 2013.

Sanusi was removed from office, but the scandal and disclosure of large-scale looting of national assets were instrumental to the electoral defeat of President Jonathan in 2015.

Indeed, there have been many cases of leaked official documents in Nigeria causing huge embarrassment to the government. In December 2019, the letter written by former Chairman of the Federal Inland Revenue Service (FIRS), Babatunde Fowler, to the Secretary to the Government of the Federation, presenting himself for reappointment was leaked.

Also in December 2019, the National Security Adviser (NSA) Babagana Monguno alleged undue interference by President Muhammadu Buhari’s late Chief of Staff, Abba Kyari, on matters of national security, claiming in the memo, which was leaked, that the Kyari’s action slowed down meaningful gains that Buhari had sought to achieve with regard to security.

In the leaked memo, Monguno directed the service chiefs to desist from taking further directives from Kyari, alleging that his directives were sometimes issued without the knowledge or approval of the president, a practice he said contributed to the government’s failure to contain insecurity.

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An American development expert, who declined to be mentioned, says people leak memos for two reasons.
“One is to further someone’s vested interests. I don’t agree with that. The second reason is that a civil servant may have raised concerns several times with no action taken. So he/she resorts to going public. You see that a lot in Trump’s administration: well intentioned individuals finally expose wrongdoings when normal channels don’t work. And then he fires them for doing their jobs. There are widely publicized incidents in the USA. I’m sure there are similar cases in Nigeria. I would love to see some of Abba Kyari’s memos. I suspect a lot of dubious dealings there,” the source said.

Goddey Iwebuke Daniel, a public sector expert who retired as a deputy director of audit in the Federal Civil Service, said “public servants were the engine room of public sector governance but when politicians want to change the goal post, they will not be happy.” He observed that before the Buhari administration, the chief of staff’s functions were limited to the Villa while the secretary to government coordinated the affairs of governance.

“He has about three permanent secretaries to assist him, but now, chief of staff has taken over all their functions. They will not be happy. Therefore, any memo to embarrass the government will be done.”

Prof Hassan Oaikhenan of the Department of Economics, University of Benin, argued that leaking of government’s memo has its positive and negative sides. On the positive side, he said, leaking of official memo could derive from some patriotic consideration.

“A person with privileged information about an action to be taken by the government about which such a person feels strongly, for genuine reasons, negatively about, possibly on account of the adverse implications for the generality of the public and being unable to express his opposition to the policy being contemplated, could decide to leak a memo relating thereto.

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“On the patriotic side, a person with the intention of putting the issue in the public domain in order to elicit necessary reactions before it is officially released may leak a memo. In this way, leaking of memo, though may at first blush be considered negative, is done for patriotic and possibly also, for altruistic reasons. The action can be considered to be constructive and it is accordingly desirable.”

On the negative side, Oaikhenan said anyone who has some issues or misgivings about the government may leak sensitive memo as a way of sabotaging the government and thus portray it in bad light. Leaking of memo in this case, being destructive, is thus undesirable.

“In particular, leaking of memo with destructive intention arises when there is some form of mistrust within government circles. It could also derive from the intention to make some financial gains if such memos are so sensitive that they could be useful in the hands of the opposition.”

Outside of government, Oaikhenan reasoned that leaking of memo could also be a critical issue in the business world.

“In 2018, for example, the techgiant, Apple, reportedly caught some 29 memo ‘leakers’ and 12 of them were arrested. The case of Kim Darroch, the British Ambassador to the United States who had to resign after leaked memos showed he criticized Trump is also fresh in recent memory. In all, it is noteworthy that leaking of memo in Nigeria, while admittedly, is not a new phenomenon, has, however, assumed a high and rising dimension, since the onset of the present administration in 2015”.

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But a Lagos-based legal practitioner, Chijioke Ikpo disagreed with those who think they have sufficient protection under the FoI to leak information. Chijioke noted that the leakage of official secrets is not only a breach of Public Service Rules but also a contravention of the Official Secret Act (OSA), under which the offender may be prosecuted and if found guilty will be imprisoned.

To him, the Freedom of Information Act has not repealed and cannot repeal the OSA “which is a reasonably justifiable enactment recognised by the Constitution of the Federal Republic of Nigeria.”

Chijioke further argued that a balance must at all times be struck between freedom of information and official secrets or state security, noting that the rampant leakage of official secrets in the Buhari administration is attributable to social injustice and discontent.

To mitigate the leakages, experts agree on the need for regular media releases and scheduled briefings to engender confidence in the public and diminish the allure of resorting to potential leakers.

They said that leakages could not be totally eradicated particularly with the democratization of publishing through cyberspace, where everyone with a smartphone has become a publisher and a journalist. They unanimously agreed that it is the job of government officials to state clearly why certain information cannot be made public. “This is the way a civilized, open and transparent society is governed.”

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