No cheers for Freedom Of Information Act, 10 years on
Not A Perfect Picture For FOI Act
When in May 2011, the then President, Goodluck Ebele Jonathan, assented to the Freedom of Information Bill, the Fourth Estate of the Realm was celebrated its passage with a lot of expectations. Many stakeholders anticipated the positive impact the bill would have on the country.
The journey was fraught with challenges. The bill had been pushed from 1999 to 2011 when it was finally signed into law.
The general notion was that it would promote good governance and better welfare for all residents in Nigeria, drawing inspiration from climes where FOI Act made meaningful impact in the polity and well being of the people.
With that excitement, President Goodluck Jonathan was applauded for taking the bold step of signing the bill into law. The commendation was also based on the fact that the several attempts to enact the Act were met with brick walls from those who should be working to promote good governance.
It would be recalled that many who were working on the need to pass the bill by President Jonathan almost lost hope considering that the bill was only signed a day to the expiration of the tenure of Jonathan’s administration.
The bill was first introduced to the National Assembly in 1999 and was not passed into a law by the administration of Olusegun Obasanjo that terminated in 2007. The House of Representatives and Senate passed Freedom of Information Bill in August 2004 and November 2006 respectively with a harmonised version sent to Obasanjo for assent but he did not sign till he left office in 2007.
This did not deter those promoting the FoI bill, they kept pushing and started the process all over again, before it landed in President Jonathan’s table again in 2011 and luckily it got signed. It should also be noted that the introduction of the bill in 1999 was a fall out of the conceived Freedom of Information Law for Nigeria by three different organisations, Media Rights Agenda (MRA), Nigeria Union of Journalists (NUJ) and Civil Liberty Organisation (CLO). These bodies, especially MRA, were also at the forefront of the passage of the bill and worked tirelessly until President Goodluck Jonathan passed it.
The Act was 10 years old on May 28. And so far, nothing much has happened in terms of its usage as conceived, especially at the state level. This is so because the state governments have shown little or no willingness to domesticate the law passed by the Federal Government aside being slow in coming with a state version of the Act. The state governments often argue that the federal legislation is not applicable to the states.
Only two states, Ekiti and Imo have passed its own version of the FOI Act, while the other 34 states are not willing to adopt that of the Federal Government neither are they willing to pass the state version of the law. Ironically, Lagos State, where the eggheads that pushed for the passage of the bill started the process of having FoI Bill passed into law is yet to successfully do so.
Martins Oloja, Editor-in-Chief, The Guardian, believes that the Act has not helped anything, not because it is not useful, but reporters generally are not serious about using it.
“We always talk about frustration with the system but we haven’t tried enough. After you see a few media development organisation and some non governmental organisations (NGO) that have tried and have recorded some successes but we practitioners have not been serious with invoking the powers in the law. We recognise the fact that the last but one Attorney General of the Federation, Mohammed Adoke tried to confuse people when he said that states might need to enact their own law and that is domestication of the national law. That is not a good development because states did not domesticate anti corruption law.
“Why can’t we apply FOIA just to get information? What is extra ordinary about it? As long as we do not change our attitude towards using FOIA, which is to complement Fiscal Responsibility Act and Public Procurement Act for the purpose of transparency in public service, we will not record any success and I think the burden is on us. We need to discharge this burden. We are not serious about using that instrument to report corruption in Nigeria,” he says.
Oloja says that reporters who are supposed to cover crime, police and civil service have not been serious. “You may say what have the editors done? Well, the editors can only encourage reporters; they cannot go to the field. Reporters should show interest. What we notice as editors is that most of the reporters are helping to cover up instead of covering.”
These challenges, Oloja notes, can be tackled to bring about effective implementation of the Act. According to him, “Editorial policies in various media orgnisations should favour these things because corruption is the reason we are underdeveloped in Nigeria. And the editors should note that. I also noticed that editors have challenges with independence because of commercial interest.
“Most of the people who place advert in newspapers are from public sector organisations unlike the developed countries where the economy is robust enough to support independence. In entrepreneurial nations like the US, UK and other European countries, the private sector in those countries are strong enough to support independence of the media by advertising in any medium they like. But here, it is not like that. There is so much poverty in the system to the extent that most media organizations cannot even pay salaries for a very long time and it will be very difficult for organisations that cannot pay salaries to practice robust journalism. Good journalism matters but we do not have capacity to practice good journalism because of poor capitalization and this is one of the constraints that we face.”
For Gbenga Adefaye, General Manager/Editor-in-Chief, Vanguard Newspapers, the daily challenge of competition, producing news does not give time for medium and long term planning, which is what the Act is all about. FOI is something you should use methodically in a way to make impact. You need time to really focus on your target to write about that. To summarise, there is a twin problem of capacity issues, knowing what to ask for and I as an editor to really engage — so it’s a two-way thing.”
Adefaye highlights what it requires to bring about the effective implementation of the FOI: “I think the Nigerian Guild of Editors (NGE), Newspaper Proprietors Association of Nigeria (NPAN), Nigeria Union of Journalists (NUJ) can come together and say, on the Magu issue for instance, we can ask the CBN to disclose how much Magu has remitted in the last five years and if they decline, we could go to court to compel, that can help but I think it is more impactful when there is collaboration. So there is need for synergy among NUJ, NGE, NPAN because at the end of the day, you cannot talk about good governance without talking about FOI.”
The Managing Director (MD)/Editor-in-Chief (E-in-C) of Nigerian Tribune, Edward Dickson, also feels that the media has not been able to get the kind of benefits that it desired. He says, “For us, at the Tribune House, of course, we had reasons to request for it. But whether at the federal level or at the state level, especially at the state level, our own contention is that in as much as it has become an Act, there should be nothing that will preclude us from using the latitude we have to access information here.”
He thinks that the Act, for instance in Oyo State, has not been domesticated, to that extent, some of the information that they want to have access to, they may not be able to access.
“So, much of what we have been able to do so far, we’ve been able to use our own ingenuity and resourcefulness to get information. But quite so often, such information when we publish them, they are fraught with litigation. No wonder that in two or three instances we ended up in the law court, defending ourselves against what is purportedly called libelous publication,” Dickson says.
He continues, “Aside from that, we also have situations where people will begin to intimidate you and begin to threaten that should you publish such information, you risk being taken to court. Or they begin to use people in critical places to mount pressure on you not to publish. You find subtle or direct threat in some situations. When they know that you are pursuing a particular type of story, the next thing you get is a letter from a lawyer purporting to be acting on behalf of somebody you are investigating and threatening you that, should you still go ahead with whatever investigation you are working on, that you risk litigation. So, at the end of the day, you’re faced with either going ahead or backing off.”
Dickson is bothered that in some of these situations, those people that would have given information, when the chips are down, they won’t be able to come out to defend the information they had given. “We had such situation like that when we got stories from our sources and those stories ended up being litigated. When you ask to come and give you more information or to come and defend the information, they will shy away from that. Of course, you’re left in the lurch.
Tackling some of the issues arising from this boils down to leadership, the Tribune Newspaper boss says. “If leadership is right, then everything will fall in place. So, it is the leadership that dictates what exactly we operate. If the leadership is not right and the leadership pays lip service to democracy, of course, there is no much we can do.”
He adds, “If the leadership is right, everything will fall in place. Until we get it right in this country, the media will continue to be in the trenches. It has always been like that. I’m sure that the media is used to fighting from the trenches and I don’t see the journalists in this part of the world being weary. So, like the Latin maxim, ‘Aluta Continua’.”
Hajia Zainab Okina, Editor-in-Chief, Blueprint, is also of the opinion that the FOIA has not been fully explored to the maximum by most media outfits.
While saying that the media houses ought to be extra nosy in the course of carrying out investigative assignments, Okina notes the system is still suspicious of the media ferreting for information for the public consumption. “There is the need for attitudinal change on the part of information givers at all levels of government,”she admits
However, she says, there should be “a proper enlightenment of the information givers and the need for them to appreciate the fact that journalists as members of the Fourth Estate of Realm have the responsibility to hold them accountable at all times.”
Simon Kolawole, The Cable’s publisher, has a different experience. To him, the Freedom of Information Act (FOIA) has improved transparency and accountability. “The Act has provided what would appear to be yet another official channel of holding government accountable — although the responses to such requests have not been as forthcoming as expected,” he says, adding, “the existence of the Act has seemingly improved the level of transparency as required of government institutions, in application, the results cannot be said to be as impressive as expected. In many cases, information given in response to FoI-related requests are, in some cases, a brief summary of what should be a detailed breakdown. On other such requests, it’s strict non-disclosure feedback, under the claim that the request violates the provision on ‘confidentiality’, as contained in Section 15 of the Act.”
Ojo Ayodele, of New Telegraph until recently, expressed the belief that there is need for more awareness on the part of journalists on the Act.
To him, “The unwillingness of the focal government or agency to release the required information is also another issue. Non-domestication of the Act in some states also affects its operationalisation. Also some government agencies are not cooperative enough.”
On the challenges that have been experienced in the process of utilising the Act to access information, Alabi Williams, Editor, The Guardian, says: “The duty is to break those barriers we are not breaking. Government institutions are not willing to release any information. Even the little we do in Lagos through Gbenga Salau, they come back to blackmail us. Gbenga was the first to blow whistle on Obasa. The following morning we got a call that said what is all these? That was the beginning of Obasa’s trouble before Sahara Reporters escalated it. There are institutional bottlenecks but we will keep trying.”
Eze Anaba, Editor (Daily), Vanguard, is not impressed that the country’s media has not applied the Freedom of Information Act well enough. His words: “I think most of the newspapers are dependent on traditional means of getting their information, without necessarily invoking the Act, sometimes they succeed, but I don’t recall where we have to revoke the Act.”
Anaba feels that if media practice is more data driven and investigative, perhaps, “It could have made a difference. But the way we operate is like a Herd Journalism — A story breaks, everybody feasts on it, on the surface, peripheral and we move on. If you look at the structures of our press, it is largely political. Too much of politics, less examination of policies, that is what I mean by being data driven and being more scientific. The Nigerian media seems to be missing the era of news magazine that do great investigation.”
While lamenting his newspaper’s experience, Hamza Idris, Daily Trust Editor, says that despite the FIO act, “sometimes when you write to agencies of government or private organisations, asking them to give you some information that will be helpful in writing your story, they have different ways of circumventing the process. Many of them do not get back to us after receiving our request, especially when they don’t want us to know certain things. Also, because they know you have the right to take them to court if they refuse you, they would give you information that is not relevant to what you asked and at the end of the day, the reporter ends up frustrated. However, in some cases, we do push further. We have some stories that take up to one year to finish them, some six, three and even a week. We just don’t write stories in Daily Trust but to impact and change the lives of people.”
Adeniyi Adesina, Editor, The Nation, angered by what is happening to FOI as a law, said it is not adding any value. “On a few occasion that media houses have had cause to write and request for information, they have virtually been turned down. When they were making attempt to bring the law, all of us felt that when we have it, it will be easy for us to ask for this and that, but there is also the official secret act, which prevents the media from having access to some documents.”
According to Adesina, “When you know that it was difficult to get information through the Act, people have started losing interest in the law. The law is there with nobody bothering to use it. I have seen some human right groups like SERAP using it, in many cases they were denied.
“For the implementation of FOIA to be effective, he said, “the code of conduct act should be amended in many areas, for example in the area of asset declaration form should be made available. Then the official secret act has outlived its usefulness, it is a colonial law and we are still keeping it. Though there is need for some secrecy when you are planning some government activities but when the policy is in place, there should be access to information on the financial commitment. Most times, they do not tell you how much they spend on a project. Unless all these things are done, the law will not be effective.
“We have written once or twice and met roadblocks and we felt there was no point continuing with it. So whatever we can investigate without going through them, we investigate. Whatever information we can collect from civil rights groups and others bodies or what we could source from others we make do with that. We do not bother about FOI.”
Mr. Debo Abdulai, Editor (Daily) Tribune says, “The FOIA is supposed to enhance the media access to information but look at the process, it is an albatross. The information you seek is not something that you just walk in and get. You have to write and wait but news doesn’t wait for you. Despite FOIA, you don’t just walk in to a government agency and get the information you seek. You have to write and wait for the response of the agency involved and by that time, more often than not, as they say in law, “the res is already destroyed.” News doesn’t wait for anybody and if you don’t get it, then it goes. The authorities have to understand the peculiarity of the media industry.
“The government has to understand the workings of the industry. The job we do doesn’t give us that latitude of time. This is because we write history in haste. We write immediately. We are unlike researchers who can spend about five years on a particular project.
“If the government has that understanding, then they can tweak the FOIA. It doesn’t have to take a week or a month to get the facts. If it can be done within 24 hours or 48 hours, it’ll be fine. But if the current regime of having to wait for a long time is sustained, it will continue to be difficult for many journalists to utilise the Act.”
Abdulrahman Abdulrauf, Editor, Blueprint, says, “The bureaucratic bottlenecks experienced greatly slow down the process of sourcing information via the FOIA. Furthermore, the resort to court to compel the concerned institution is yet to make the right impact.”
He believes that enforcement of the rulings of the court will demonstrate government’s readiness to allow the Act work.
Speaking on the major challenges journalists have utilising the Act, Ademola Oni, Editor, The Punch, notes that the lack of willingness on the part of government officials to release information; the impression that the FoI Act applies only at the federal level and must be domesticated at the state level to make it binding on the states; the culture of corruption that makes it imperative to hoard information, especially those relating to finances; the lack of a groundbreaking judgment (in favour of FoI) to lay a solid foundation for its strong implementation; the unwillingness of media houses to keep on pushing for the implementation of the Act as a result of the frustration encountered in sourcing information through the instrumentality of the law; Funds to embark on serious advocacy and legal option (on the part of practitioners) to enforce the Act and the poor state of the economy has limited the resources available to the media houses.
He says the media must be determined to keep on the fight to enforce the law, not submitting to the frustration that will discourage them from seeking classified information through the FoI, while media owners or stakeholders must approach the National Assembly to ensure the domestication of the Act at the state level and stakeholders must equally approach the Supreme Court to seek clarification on the implementation of the law.
Programme Director, Mr Ayode Longe, notes that though Nigeria has a Freedom of Information (FOI) Act, its implementation is far from satisfactory as compliance with the provisions of the law across government has been poor.
“This is why we are asking government to put mechanisms in place for the effective implementation of the Act to enhance the ability of citizens to access information, which is definitely a public good,” Longe says.
He explains that such mechanisms should be aimed at improving the level of compliance by public institutions with the provisions of the Act in different critical areas, including their responsiveness to requests for information from members of the public; their publication of information that they are required to proactively disclose; their submission of annual reports to the Attorney-General of the Federation; as well as the speedy adjudication and resolution of cases arising under the Act.
Longe argues that if the FOI Act will make real impact in bringing about transparent and accountable governance in Nigeria, its implementation across different levels of government also need to be assured.
According to him, despite the insistence by many states over the last 10 years that the FOI Act does not apply to them, it is ironic and quite disappointing that only two states – Ekiti and Imo – have so far passed FOI laws for their states and even so, the level of implementation of those laws remains unimpressive.
He observes that the only conclusion that can be drawn from the situation is that the other 34 states have no intention of being transparent or accountable to their residents but are merely using the excuse of non-applicability of the law to their states to foster secrecy in governance, thereby depriving citizens of the possibility of participation in governance at the state level.
Longe stresses that citizens need reliable, accurate and timely information about government, its policies and activities and only an effective implementation of the FOI Act can ensure that genuine information about the government gets to the people, which can in turn engender trust in government by the people.
“A lack of access to information gives rise to and fuels the spread of rumours and fake news. Only timely access to accurate information can cure this.”
X-raying the implementation of the FoI Act in Nigeria, 10 years after the passage of the law, the Manager, Social Mobilisation, ActionAid Nigeria, Adewale Adeduntan rated the implementation far below the average, because the awareness level of public agencies and institutions on the implementation of FoIA is still low.
“Secondly, there are avoidable constraints in accessing information in agencies and institutions of government resulting in poor implementation of the provisions of the Act. The Freedom of Information Act has not practically given the citizens the right to access information from government institutions and agencies. As it is often described as the law that keeps citizens in the know about their government, the rating in our assessment is appalling because access to information today is still quite challenging.”
Adeduntan says the implementation of the FoI Act in the last 10 years after its passage is more like a flash in the pan.
“There will be significant change in Nigeria’s development outcomes if governments’ businesses are transparent at all levels. This will significantly make all the efforts of MDAs to translate to improved socio-economic status of the masses. As things stand today, our public finances fuels poverty if you benchmark public expenditure against the well-being of the masses.
“Secondly, though some civil or public officers are aware of the FoI Act, but have not or their institutions have not complied with the required provisions of the Act; and that secrecy, bureaucracy, poor record keeping, inadequate knowledge of the provisions of the Act, corruption, and lack of enforcement are some of the inhibiting factors to the implementation of FoI Act. There is also the challenge of poor public attitude towards openness, transparency, and accountability due to narrow mindsets in doing government business under confidentiality. All these have negatively impacted on the potentials of the Act.”
With only two states, Ekiti and Imo, passing or domesticating the FoI Act, what does it say of governance at the state level, Adeduntan noted that it is obvious most states governments in Nigeria are reluctant to adopt and domesticate the FoI Act. According to him, this shows that most public officers, particularly state governors are not in support of the FOI Act and actively take steps to frustrate the implementation of the Act.
“This is contrary to the principles of democracy anywhere globally since democracy is all about open and transparent participatory government. Poor access to information feeds corruption. Secrecy allows back-room deals to determine public spending in the interest of the few, rather than the many. Lack of information impedes citizen’s ability to assess the decisions of their leaders and even to make informed choices about the individuals they elect to serve as their representatives.”
ON why stakeholders should work to make states across Nigeria pass the FoI Act, he said all existing laws, such as Official Secrets Act, Penal Code, Criminal Code, Public Complaints Commission Act, and other extant laws that affect the effective implementation of the FoI Act should be repealed or amended to avoid conflict with the FoI Act.
“Even though sections 27 and 28 of the FoI Act also overrides the provisions of the Criminal Code, the Penal code, the Official Secrets Act or any other such enactment with respect to disclosure of any record, they ought to be repealed because they are adversative to the FoI Act.
“Technical and tricky concepts in the Act must be simplified or clarified. This will aid prevention of conflicting judgments by the courts in the implementation of the FoI Act. More importantly, the National Assembly should also state clearly that the FoI Act applies to all states of the Federation to remove the issue of domestication and non-domestication of the Act by the States. The National Assembly should take steps to address the gaps in the law with a view to strengthening it. There must also be a general consultation of stakeholders to find out alternative ways the provisions of the Act could be better implemented for easy access to information.”
It took a long time for the FOI Act to come to life as it suffers many set backs during its passage. Despite it has been passed, the usage is still said to be low. So what can be done to make more Nigerians, including the media, to use the FOI Act to seek for Information from government, Adeduntan recommended mass enlightenment for public knowledge and understanding of FoIA beyond mere awareness, good record keeping and adoption of modern information management system.
“Training and re-training of journalists, students, pressure groups, and even religious organisations on the usage of the Act is very important. A simplified or abridged version of the FoI Act should be produced to enable the citizens understand the provisions of the Act and increase its usage. The publications should be written in several local languages in Nigeria to make it easy for people to understand the provisions of the FoI Act. Moreover, Institutions such as the National Orientation Agency, the Nigeria Bar Association, the media houses, and Civil Society Organisations should assist in the responsibility of educating Nigerians of the existence of the FoI Act and their rights and obligations under it.”