Wednesday, 6th December 2023

When judicial intervention enforced compliance with FoI requests

By Gbenga Salau
23 July 2023   |   2:07 am
More­­­­ often than not, Ministries, Departments, and Agencies (MDAs) of the Federal Government usually turn down Freedom of Information (FOI) requests based on flimsy excuses.

More­­­­ often than not, Ministries, Departments, and Agencies (MDAs) of the Federal Government usually turn down Freedom of Information (FOI) requests based on flimsy excuses. At the state level, the situation is worse as many state governments and their agencies brazenly disregard the FoI Law because it has not been domesticated in their domain. The recent court judgment in favour of the Socio-Economic Rights and Accountability Project (SERAP) compelled the Federal Government to release information on General Sani Abacha, which many say is a good development in the implementation of the FOI Law. GBENGA SALAU reports.

Many stakeholders, especially civil society groups working in the accountability and transparency space in the country were recently exhilarated, following the recent court judgment, which mandated the government of President Bola Ahmed Tinubu to “disclose the exact amount of money stolen by General Sani Abacha from Nigeria, and the total amount of Abacha loot recovered and all agreements signed on same by the governments of former presidents Obasanjo, Yar’Adua, Jonathan and Buhari.”

The Federal High Court in Abuja, in what was seen as a landmark judgment, ordered the disclosure of the spending details of about $5 billion (which the late army general stole) by the governments of former presidents Olusegun Obasanjo, Umaru Yar’Adua, Goodluck Jonathan and Muhammadu Buhari.

The judgment delivered in the penultimate week by Justice James Omotosho followed a Freedom of Information suit number: FHC/ABJ/CS/407/2020, brought before it by the Socio-Economic Rights and Accountability Project (SERAP).

Omotosho in his judgment held that: “In the final analysis, the application by SERAP is meritorious and the Federal Government through the Ministry of Finance is hereby ordered to furnish SERAP with the full spending details of about $5 billion Abacha loot within seven days of this judgment.”

The government was further ordered to “disclose details of the projects executed with the Abacha loot, locations of any such projects and the names of companies and contractors that carried or carrying out the projects since the return of democracy in 1999 till date.”

SERAP was moved to head to the court after invoking the FOI law in its request for details of the spending of about $5 billion repatriated to Nigeria, from the Ministry of Finance, but without success.

In addition to the location of projects executed with the money as well as the names of companies and contractors involved, the court also ordered the government to “disclose details of specific roles played by the World Bank and other partners in the execution of any projects funded with Abacha loot.

A peeved Justice Omotosho added that: “The excuse by the Minister of Finance is that the Ministry has searched its records and the details of the exact public funds stolen by Abacha and how the funds have been spent are not held by the Ministry. The excuse has no leg to stand given Section 7 of the Freedom of Information Act.”

It is, however, important to point out that the excuse and refusal by the Ministry of Finance to honor SERAP’s FOI request is coming more than a decade after the FOI Law was passed.

When the FoI Bill was signed into law in 2011, expectations from stakeholders were sky-high, as many had anticipated that passage of the bill into law would, to a large extent, engender an open, transparent government and society. It was also concluded that the passage would promote good governance, and better welfare for the average citizen, as well as make Nigerian leaders accountable.
It was consequent upon all these that President Goodluck Jonathan was commended for taking the bold step and signing the bill into law. The commendation was also based on the fact that several attempts to get the bill passed ran into brick walls.

It would be recalled that the bill, which was first introduced to the National Assembly in 1999, could not see the light of day all through the administration of President Olusegun Obasanjo that left office in 2007.

Before the end of the administration, however, the House of Representatives and Senate passed the Freedom of Information Bill, in August 2004 and November 2006 respectively. The harmonised version was sent to Obasanjo for assent, but he declined.

This development failed to deter those promoting the bill as they kept pushing and even started the process all over again before it landed on President Jonathan’s table for his assent in 2011.

Three organizations- the Media Rights Agenda (MRA), the Nigeria Union of Journalists (NUJ), and the Civil Liberty Organisation (CLO) were at the forefront of pushing for the introduction of the bill in 1999. These bodies, especially the MRA worked tirelessly until President Jonathan appended his signature to the document.

Interestingly, many ministries, departments, and agencies of government, as well as their heads, more often than not, observe the law in breach or treat it with impunity.

For instance, 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 complying 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 applications 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 law also made provisions for “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.”

All these notwithstanding, many MDAs do not comply with submitting annual reports on FOI implementation in their various units.
Sharing his thoughts on how to make MDAs better comply with FOI requests, the Africa Editor of the Centre for Collaborative Investigative Journalism (CCIJ), Ajibola Amzat, said that government should approve budgets for FoI units of federal and state agencies.

He also suggested that the FOI Act should be amended to provide serious sanctions for MDAs that turn down requests from interested groups or members of the public.

“The Ahmed Tinubu-led administration is bound by law to enforce the judgment if he must be taken seriously as a president who respects the rule of law. His promise to reduce corruption would mean nothing if he does not take the enforcement of FoI law seriously. And he should go ahead and declare his assets and make the information accessible to the public.
“When you break a law, there is a penalty to pay, and that applies to breaking the FOI Act; nothing different. And guess what? The fine is N500,000 for non-compliance and a year of imprisonment for willful destruction of public information. I hope in this case the Federal Ministry of Finance is compelled to pay the fine, and if the information is tampered with, the former minister of finance should be immediately prosecuted.”

On lessons for MDAs following the court judgment in favour of SERAP, Amzat said that the major lesson here is that the MDAs must comply with the FOI Act regardless of the oath of secrecy that has been forced by government agencies for decades now.

“MDAs can no longer invoke the oath of secrecy as justification for preventing access to public information,” he submitted. It is also over a decade now since the FoI law came into effect, yet the failure to compliance rate is still soaring. So, what can stakeholders do differently to positively change the narrative?

Amzat said that the media, non-governmental organizations (NGOs), civil society groups/associations, as well as citizens, should make more demands for access to public information, and they should be ready to sue any agency or public officer that prevents access to public information, especially information that is not exempted by the FOI Act.

Many states of the federation have not domesticated or passed their versions of the FOI Act. This, observers say explains why they do not honour FoI requests. Lagos State has particularly been in the eye of the storm for constantly failing to obey FoI requests.

The International Centre for Investigative Reporting (ICIR), an organisation that is committed to good governance and accountability, confirmed that it has written several letters to Lagos State government, including requesting information, but such requests have been rebuffed, despite quoting sections of the FOI law to support its demand.

Also, Premium Times, an online newspaper, revealed that between 2017 and now, it has submitted eight FoI requests to the Lagos State government, but with no single response from the government.

It, however, added that sometimes the state government acknowledges receipt of the letters, but still fails to provide the information being sought.

In May 2018, BudgIT, a CSO filed an FoI request to the state government asking for a breakdown of the state’s education budget between 2015 and 2018.

The state government, through its Ministry of Justice, refused to accede to the request saying: “After a careful review of the FOI Act and the recent judgment of the Court of Appeal (Edo State Division) in EDOCASA V OSAKUE & 8 ORS, delivered on 28th March 2018, it is the advice of this Office that the FOI Act does not apply to state governments except the FOI Act is domesticated by the state government (being at the discretion of the state to enact a similar law).”

That government’s response, which was signed by Hameed Oyenuga, the then Director of Advisory Services and Judicial Liaison added: “Given the above, we further advise that any request in line with the FOI Act should not be acceded to, as Lagos State has not domesticated the law, and as such not applicable to the Lagos State government.”

On what can be done to make states domesticate the law or pass a version of it, Amzat noted that there are two contradictory rulings on the state government’s compliance with the FOI Act.

“Most state governments are relying on the favorable court ruling to deny access to public information. Civil society should test the rulings of these courts in superior courts up to the Supreme Court. That way, we can have a settlement on the debate. A state like Lagos is notorious for disregarding the FoI law. The ruling by the higher court may stop such judicial rascality.”

On how to make MDAs better comply with FOI Act, the Programme Director, Media Rights Agenda (MRA), Ayode Longe, stated that the Act states that if anybody is denied information requested under the Act, such a person should seek redress in court.

“Some other countries have independent administrative ombudsmen to whom they can apply for a review before going to court if that fails, but we do not have that in our law. I will therefore advise that anybody denied access to information should go to court.

“We can overwhelm the public institutions with court cases that will force them to start responding positively to FOI requests. And we should pursue such cases to the Supreme Court if need be, and civil societies can come together to help in this area so that one individual, or organisation is not overwhelmed by the cost.

“There is also the need for the intervention of the Presidency, which should make a pronouncement that the FoI Act is an extant and operational law in Nigeria, which public institutions must comply with and implement. The National Assembly, in its oversight function, can also issue directives to public institutions to comply. Both the Presidency and the National Assembly can show leadership by complying with the Act and granting access to information requests. Civil society is also asking that there should be administrative sanctions in place for public officials and institutions that fail to comply.”

Longe added that one of the lessons learnt from the court ruling in favour of SERAP is that other civil society organisations and individuals should always approach the courts whenever they are denied access to information.

“That way, we can force public institutions to comply with their obligations in the FOI Act. MRA is doing this and also getting favourable judgments. We must not slump into inertia and allow public institutions to ride roughshod on us with the mindset that they will not comply and that nothing will happen.

“We need to push and even push the frontiers as well. Media Rights Agenda has sued two private institutions that used public funds and got favorable court pronouncements and judgments.

“President Bola Tinubu has touted himself as a democrat and so he should prove that he is a real democrat by ensuring that the judgment is enforced. Again, if not for anything, democracy is built on the rule of law, and we cannot continue to disobey court orders and claim that we are operating a democracy.

“In addition, by enforcing the judgment, the government will be showing good example and leadership; it will send the signal that this government cherishes the rule of law and not one that intends to thrive in impunity and chaos,” he added.

He further stated that there should be penalties for failure to comply with FoI requests because if there are no penalties, public institutions will deny anyone access with impunity. “And as you know, impunity breeds more impunity, and ultimately a chaotic society.”

To positively change the narrative to better compliance, Longe said that stakeholders should continue to push for the effective implementation of the Act.

“As it is said, ‘eternal vigilance is the price of liberty.’ They have to explore different strategies and tactics to make public institutions comply with their obligations under the FoI Act, especially granting access to information from members of the public.”

On state governments and their agencies’ constant pushing of the non-applicability narrative at the state level, Longe said that the applicability suit is still before the Supreme Court and the verdict will determine which way to go.

“But if the Supreme Court says the Act does not extend to states, then I will advise that just as Media Rights Agenda (MRA) and other leading civil society organistions were able to get the FoI Act passed by the National Assembly, civil society organisations should also coalesce and advocate for the passage of the law by the various state assemblies.”

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