A CRITICAL ANALYSIS OF FREEDOM OF INFORMATION ACT IN NIGERIA
By Ayodele Afolayan
Freedom of information, specifically access to information held by public authorities is a fundamental element of the right to freedom of expression and vital to the proper functioning of a democracy. It is an act that makes provision for the disclosure of information held by public authorities or by persons providing services for them (Robert, 2000). This means that the act enables one sees a wide range of public information because it gives the right to ask any public body for all the information they have on any subject. According to the Media Rights Agenda (2011)
This Act makes public records and information more freely available, provide for public access to public records and information, protect public records and information to the extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences for disclosing certain kinds of official information without authorization and establish procedures for the achievement of those purposes and; for related matters.
In a country where Freedom of Information Act is in operation, anyone can make a request for information– there are no restrictions on your age, nationality, or where you live. You can ask for any information at all, but some information might be withheld to protect various interests which are allowed for by the Act. If this is the case, the public authority must tell you why they have withheld such information. According to Bard (2001), unless there’s a good reason, the organization must provide the information within seven (7) working days.
In a democratic world, the public is expected to have access to information (particularly through the media) not only on how they are governed but also on anything that is of interest to the individual or group. This is what the Act is all about. Until recently, the right to freedom of information in Nigeria has been overlooked. While many established democracies across the world have enacted freedom of information regime, Nigeria had (before now) regarded freedom of information as a luxury only practicable in the Western World and other established democracies (Ekunno 2001). Ekunno further asserts that a culture of secrecy had become entrenched in Nigerian government and members of the public including the media are always denied access to official information, which in a democracy, they should be entitled to.
This breakdown in the flow of information impairs the democratic process and slows economic and social development as citizens are unable to participate effectively in the process of government, make informed choices about who should govern them and to properly scrutinize officials to ensure corruption is avoided. Government officials themselves also fail to benefit from public input which could ease their decision making or improve their decision. Also, without accurate information on matters of public interest, citizens must rely on rumours and unconfirmed reports with the obvious danger this presents for accurate and objective reporting by the media.
OBJECTIVE OF THE STUDY
This study focuses on the newly passed Freedom of Information Act in Nigeria. It exposes the flaws of the Freedom of Information Act and the likelihood effects it will have on Nigerians.
FREEDOM OF THE PRESS
The word press means all the media of mass communication, although the printed media, as the oldest, is treated as the exemplar in most discussions. Freedom of the Press according to Bollinger (1991) means the right to publish newspapers, magazines, and other printed materials without governmental restriction and subject only to the laws of libel, obscenity, sedition, etc. It could also mean the right to broadcast through electronic media, without prior restraints (Campbell, 1994). In summary, it is the right to confidentiality of sources, and a right to access information. Not only is it important to see the press as an integral part of the freedom of expression, but also as part of a system of social control whereby relationships between individuals and social institutions are mediated.
Historically and considering Freedom of the Press from theoretical framework of view, the press first functioned as the mouth piece or house organs of the few who directed the opinions of the common people. In English common law, the press belonged to the King. This is called the Authoritarian Theory of the press (Anaeto, Onabajo and Osifeso, 2008). With the demise of monarchy, the press came to adopt a role in search for truth, a kind of free marketplace for ideas and opinions, devoid of government control. This is the type of press Anaeto et al (2008), called the Libertarian Theory of the Press
In recent years, with media mega-mergers, some say the press has fallen back into the hands of a few. For example in the United State of America, five giant publishers control the printed media; another five companies produce all movies; and no more than three people control the broadcast media -radio and television (Robert, 2000). Not only do monopolies invite government intrusion, but they make it hard for the press to be a free marketplace of ideas.
The best that can be accomplished are guarantees of equal time, and a professional sense of obligation to responsibly see that all sides are fairly presented in objective journalism. McQuail (1987) cited in Ojobor (2002) sees this as part of the social responsibility theory of the press.
THEORETICAL FRAMEWORK: SOCIAL RESPONSIBILITY THEORY
Robert Hutchins (the head of Hutchins Commission on Freedom of the Press) once said that “Freedom requires responsibility” Marzolf (1991). If the Press would be free to publish anything, it behoves on them to be willing to accept responsibility for whatever is published. This Seminar paper focuses on press freedom and agrees that freedom has a great responsibility behind it. In such a case, the best theory that would be appropriate is Social Responsibility Theory. The theory is an off-shot of Libertarian Theory and was propounded by F.S. Siebert, T.B. Peterson and W. Schramm in 1963.
Historically, Social Responsibility Theory owes its origin to the Hutchins Commission on Freedom of the Press, set up in the United States of America in 1947 to reexamine the concept of Press Freedom. The Commission worked hard at developing what has become known as the Social Responsibility Theory. This theory, according to Christian (2004), reflected a dissatisfaction with media, owners and operators and the way they distributed media while also accepting the following principles: the press should service the political system, enlighten the public, safeguard the liberties of the individual, service the economic system, entertain the public (provided that the entertainment is “good”), and maintain its own financial self-sufficiency.
The Commission saw the Social Responsibility Theory as being a “safeguard against totalitarianism.” Hutchins’ main goal was to make the owners of the press responsible and still maintain freedom of the press.
In this same light, Siebert, Peterson and Schramm (1956), warn:
…the power and near monopoly position of the media impose on them an obligation to be socially responsible, to see that all sides are fairly presented and that the public has enough information to decide; and that if the media do not take on themselves such responsibility it may be necessary for some other agency of the public to enforce it; freedom of expression under the social responsibility theory is not an absolute right, as under pure libertarian theory. One’s right to free expression must be balanced against the private rights of others and against vital social interests.
This theory is relevant to the work because it focuses on the media to be careful while exercising their freedom. The Nigerian media need to know the assumptions of the Social Responsibility Media Theory before jumping to make use of the Freedom of Information Act. McQuail (1987) cited in Anaeto, Onabanjo, Osifeso (2008) gives the assumptions of the theory as follows:
(a) That media should accept and fulfill certain obligations to society.
(b) That, through professional standards of informativeness, truth, accuracy, objectivity and balance, these obligations can be met.
(c) That media should regulate itself within the framework of law and established institutions to be able to carry out its responsibilities.
(d) That whatever might lead to crime, violence, civil disorder, or offence to minority groups, should be avoided by the media.
(e) That the media should reflect its society’s plurality, giving access to various points of view and granting all the right to reply.
(f) Based on the principle in (1), the society has the right to expect high standards of performance from the media. Intervention can only be justified to secure public good.
(g) Accountability of media professionals should be to the society, employers and the market.
With the above principles, it is glaring that the “Freedom” carries obligations, and the Nigerian press, which now enjoy a privileged position under the new Freedom of Information Act, is obliged to be responsible to Nigerians in carrying out certain essential functions of Mass Communication.
For example, it would not be socially responsible for any Nigerian media (despite the presence of (FIA) to have reported how on 25th December 2009, Umar Farouk AdulMultalab, used some methods, evaded security measures and smuggled a bomb in his underpants into an American airline en route Amsterdam to Detroit nor report the act of rape that happened between Mannir Goma and an old woman in Katsina State last year October. The media while exercising their fundamental human right must put the public interest and the national security at heart. This is part of the onus of Social Responsibility Theory.
Human Rights, Democracy and Access to Information
The right to freedom of information is an important aspect of the universal guarantee of freedom of information which includes the right to seek and to receive as well as to impart information. The right is proclaimed in Article 19 of the Universal Declaration of Human Rights and protected in international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human Rights. According to Ruth (2000), Article 19 of the ICCPR is in the following terms:
Every one shall have the right to hold opinion without interference.
Everyone shall have the right to freedom of expression: this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally in writing or in defeat, inform of arts or through any other of his choice.
In recent years, the UN special Rapporteur on freedom of opinion and expression has regularly spread the overriding importance of freedom of information. For example in his 1995 reports to the commission on human rights, he stated: Freedom will be bereft of all effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked (Ruth 2000).
AN OVERVIEW OF FREEDOM OF INFORMATION ACT IN NIGERIA
With the military system of government becoming unpopular throughout the world and democracy becoming the order of the day, there has been increasing acceptance of the importance of human rights and in particular of freedom of expression. For a country like Nigeria that had witnessed decades of military rule where press freedom was restricted, it came as a relief when the Freedom of Information Bill was signed into law.
Virtually all government information in Nigeria is classified as top secret. Longe Ayode of Media Rights Agenda (MRA), a Lagos-based Non-Governmental Organisation (NGO), says this veil of secrecy makes it difficult to get information from any state agency (Ayode, 2011). Plethora of laws prevents civil servants from divulging official facts and figures, notably the Official Secrets Act which makes it an offence not only for civil servants to give out government information but also for anyone to receive or reproduce such information. Further restrictions are contained in the Evidence Act, the Public Complaints Commission Act, the Statistics Act and the Criminal Code – amongst others.
Adeleke (2011), says the idea behind these laws is to protect vital government information, but the level of secrecy is so ridiculous that some classified government files contain ordinary information like newspaper cuttings which are already in the public domain, So impenetrable is the veil of secrecy that government departments withhold information from each other under the guise of official secrets legislation. There are also instances where civil servants refuse to give the National Assembly documentation after being asked to do so.
The result of this is that journalists are denied access to information that is critical for accurate reporting, and unraveling the web of corruption in Nigeria. These issues motivated Edetaen Ojo along with other relevant NGOs to initiate the bill that has become Freedom of information Act.
Historically, the Freedom of Information Bill in Nigeria could be traced back to 1993 during the regime of General Sani Abacha in which transparent government was not the order of the day. Edetaen Ojo, head Media Rights Agenda (MRA), a young organization for the defense of free expression rights, Civil Liberties Organization (CLO), and the Nigerian Union of Journalists (NUJ) Lagos branch spearheaded the drafting of Freedom of Information Bill (FIB).
The draft went through several reviews before it was presented to Former President Olusegun Obasanjo in early June 1999, with the hope that the FIB would be forwarded to the National Assembly as an executive measure. He declined, advising MRA instead to do so if they wished.
The bill was then submitted to the National Assembly in 1999, as advised by Olusegun Obansojo but the legislature’s four-year term passed without the bill being voted on.
The bill was re-submitted after the present National Assembly was inaugurated a few years ago, it scaled through both the lower and upper chamber of the National Assembly and the harmonized version was passed by both Chambers on May 26, 2011. It was conveyed to Goodluck Jonathan on May 27, and he signed it on May 28, 2011. So far only two states in Nigeria (namely Ekiti and Lagos States) have adopted the Freedom of Information Acts at State level but they have extended the response date at State level from 7 days to 14 days (Ogbuokiri 2011).
Prior to signing this bill to law, access to information especially of Hybrid Public Authorities was no go areas for the journalists. People view some information as being sacred with the belief that it was not meant for public consumption.
Journalists or media houses that have at one point in time exercise their rights on issues bordering on “sacred information” have dearly paid for it. There have been cases of assault on journalists, arbitrary detention and mass confiscation of newspapers. It is hoped that adequate and correct information will start to be made public with the passage of FIB.
The newly enacted Freedom of Information Act according to Ene (2012):
Guarantees the right of access to information held by public institutions, irrespective of the form in which it is kept and is applicable to private institutions where they utilize public funds, perform public functions or provide public services.
Requires all institutions to proactively disclose basic information about their structure and processes and mandates them to build the capacity of their staff to effectively implement and comply with the provisions of the Act
Provides protection for whistleblowers.
Makes adequate provision for the information needs of illiterate and disabled applicants.
Recognizes a range of legitimate exemptions and limitations to the public’s right to know, but it makes these exemptions subject to a public interest test that, in deserving cases, may override such exemptions.
Creates reporting obligations on compliance with the law for all institutions affected by it. These reports are to be provided annually to the Federal Attorney General’s office, which will in turn make them available to both the National Assembly and the public.
Requires the Federal Attorney-General to oversee the effective implementation of the Act and report on execution of this duty to Parliament annually.
With the new law, Ene further remarks that “Nigerians finally have vital tools to uncover facts, fight corruption and hold officials and institutions accountable” (Enonche, 2012). The new law will profoundly change how government works in Nigeria.
PROSPECT OF FREEDOM OF INFORMATION ACT IN NIGERIA
The denial of access to information and the attendant widespread ignorance in the society does more harm to the society than any harm that could possibly arise from granting access to members of the public. Analysts have identified that the Freedom of Information Act is a vital tool to ensure democracy and responsible governance in Nigeria. This is because it will curb executive, judicial and legislative recklessness. The rot in governance will start to be made known just as we are being duly informed of the rot on mismanagement of fuel subsidy.
Although the media deal in information more than any other segment of the society, the Freedom of Information Act is not a law for the Nigerian media alone. Rather, it is a law that guarantees a right of access to information to everyone in the country as such, places enormous responsibility on those who hold information (Arogundade 2012). With the Information Act in practice, there will be openness, transparency and good governance thereby complementing government’s avowed commitment to stamping out corruption in Nigeria, and in particular, will assist various government agencies such as the National Human Rights Commission (NHRC), the Independent Corrupt Practices and Other Related Offences Commission (ICPC), the Economic and Financial Crimes Commission (EFCC), the Code of Conduct Bureau and Code of Conduct Tribunal, as well as security and other law enforcement agencies, in the performance of their duties (Enonche 2011).
Enonche is also of the opinion that the Freedom of Information Act will enhance the speedy dispensation of justice, especially when complemented with a Whistleblowers Act. This is because the law will facilitate the investigation of cases by law enforcement agencies and make it possible to secure the cooperation of witnesses. He further stated that the Act will also strengthen the democratic process as it will make it possible for citizens to hold the government accountable and be involved in all facets of policy formulation and implementation. This will trigger a number of social changes which will be a catalyst for more rapid social and economic development.
CHALLENGES OF FREEDOM OF INFORMATION ACT IN NIGERIA
In discussing the Act and its challenges, several questions need to be addressed including the following:
Should the public know everything?
If the answer to the above question is no, what are the exceptions?
Are there other laws or regulations in place which prevent public institutions to disclose details of their activities, operations and businesses?
There are always limitations as to what can be accessed in the operation of Freedom of Information, even in developed countries where Freedom of Information Act has been in practice for long. This type of information must have been taken care of in the Bill and they are always in few cases. In Nigeria, the case is different as the Freedom of Information Act, according to Ogbuokiri (2011), contains more exemption sections and clauses than sections that grant access to information. This means that some mischievous public officers can use these sections for unjust and mischievous purposes. For instance, Ogbuokiri added that only Sections 1 and 3 grant access to information; but as many as ten sections (Sections 7, 11, 12, 14, 15, 16, 17, 18, 19 and 26) are meant to deny the public access to information.
However, the omnibus proviso against denial of information that says “where the interest of the public would be better served by having such record being made available, this exemption to disclosure shall not apply” is commendable, with the expectation that the Judiciary would interpret the proviso liberally for the public good.
Another fundamental issue that will affect The Freedom of Information Act is the Act in some laws that are still fully operational in Nigeria. For example, we have the Official Secrets Act, Evidence Act, the Public Complaints Commission Act, the Statistics Act and the Criminal Code; all aimed at suppressing the free flow of information. All these laws may affect the effectiveness of the Act in the long run as some mischievous public officers can use these aspects of the Acts for their selfish purposes just like what happened in the United Kingdom Parliament in 2009.
Members of the UK Parliament (MPs) had misused the permitted allowances and also claimed some unlawful expenses; members now bank on Freedom of Information Legislation to prevent disclosure of the atrocity. Though the Freedom of Information Legislation was eventually negated (because of some sections in their Freedom of Information status that nullified the freedom of Information Legislation) and the issue subsequently published by The Telegraph Group in 2009, it would have been a different thing if it was in Nigeria.
There are other challenges of complying with the FIA. Some of these include poor culture of record keeping/maintenance and retrieval, capacity challenge in many public institutions, frustrating and time consuming bureaucracy in public service as well as widespread corruption and the high level of ignorance among the work force in the public sector.
The recently passed Freedom of Information Act has been said to be the right, that enables members of the Nigerian public to have access to information held by government bodies, because of this, it is now recognized as a fundamental human right to which Nigerians are entitled to.
The public is entitled to the truth, and only correct information can form the basis for sound journalism and ensure the confidence of the people. With the FIA, the press is now better armed to hold public officers accountable to the people. As the Fourth Estate of the Realm, the effect on journalism will undoubtedly have a spiral effect on the entire society for the benefit of all.
The success of implementation of the FIA is the co-responsibility of both the government (“supply side”) and the governed (“demand-side”). The demand-side which includes the citizens, civil society and community organizations, media and the private sector must take responsibility for using the law as well as monitoring government efforts. The attitude of public administrators is critical to the successful implementation of the Act because public administrators, who are the face of government, will determine the quality of, and access to, information.
Having brought to perspective the challenges of the newly signed Freedom of Information Act in Nigeria, it is important to give the following recommendations:
The Freedom of Information Act needs to be reviewed so that about 10 sections of the law which dwell on non-disclosure of information will be looked into.
It is advised that the federal government and its agencies should take steps to ensure that necessary regulations or procedure are put in place for the effective implementation of the Act. For instance, the Attorney General of the Federation (AGF) should ensure that regulations already produced for the smooth implementation of this Act are gazetted.
More campaigns need to be done to increase the level of awareness of the public about Freedom of Information Act. The media as a core partner should increase public awareness and understanding of the Act.
It must still be emphasized that it is the responsibility of all Nigerians to carry out the oversight function of ensuring compliance to the provisions of the Act and not that of the National Assembly alone