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8TH YEARS ANNIVERSARY OF FREEDOM OF INFORMATION ACT 2011: FREEDOM OF INFORMATION COUNSEL CAUTION MDAS

Today marks the 8th years’ anniversary of Freedom of Information Act in Nigeria. The law was passed on 28th day of May 2011. FOIA is a citizen led anti-corruption legislation and currently most utilized piece of legislation in Nigeria. Before the enactment of the Act, transparency and public trust was not completely cut off and post legislative era have not shown much difference 8 years after.

On May 28, 2011 the seal was set on the bill making Nigeria the fifth Africa country to pass the law. Pressure for to public records may well have a much longer history and intervention. This is not the only piece of legislation that mandates access to information in Nigeria. The Constitution, Evidence Act, Archives Act, Fiscal Responsibility Act, NEITI Act etc legalized access to public records but FOIA emergence introduce a mixture of civil reprove and criminal sanction on one hand and state and non state actors enforcement on the other hand. We will give it to the law for giving bite to disclosure by establishing a legal right to such demand and a review procedure.

Nevertheless, the law is suffering from a major setback as most MDAs have poor compliance record. With the available data from 12 requests made by FOI Counsel between May 2018 and April 2019, educational sector is more responsive to FOI requests. A request for information was sent to Nigeria Prison Service on numbers of foreigners detained in Nigeria prisons custody, sex, nationality, date of arrest, case status and date of birth between 2012-2018. The request was denied without a note from the organization. We partnered with Network of Pro bono Lawyers to make a request to Legal Aid Council of Nigeria requesting to know criteria for case selection for legal aid.

Also the age, sex and state of origin of beneficiaries of legal aid between 2015-2018. We also filed FOI request to the Attorney General of the Federation for records on local and international donations and

grants to Open Government Partnership between 2015 and 2018. The AGF in his response denied ever receiving foreign donation for the process. The response was received after ten weeks which is outside the response period. A request made by Edo Civil Society Organizations (EDOCSO) in June 2018 on location of police post sited in oil producing areas of the state as budgeted for under Edo State Oil Producing Area Development Commission (EDSPADEC) budget line. The court relied on EDOSACA v AUSTIN OSAKUE to strike out our action amidst sympathy with the request and requesters.

As part of our activities on transparency of foreign donations, we made a request on International Organization for Migration (IOM) to release the grants approved for Edo State Government to support returnees’ reintegration and economic support between 2016 – 2019 and the specified work plan. The international organization in their response stated that they are not bound to obey a municipal law on disclosure as they enjoy diplomatic immunity. One practical challenge to FOIA is the legislative scope of the law. One school of thought is that once a legislative item on concurrent list is legislated upon by National Assembly and the state has not enacted a similar law, it is bound to apply it as the law is deem to have covered the field. See MARTINS ALO v. SPEAKER ONDO STATE HOUSE OF ASSEMBLY& ANOR

(APPEAL NO: CA/AK/4/2017).

Another school of thought believes that the Act is unconstitutional being in concurrent list and yet legislated upon by the National Assembly to cover the entire Nation. This school finds it strength in the case of EDO STATE AGENCY FOR THE CONTROL OF AIDS (EDOSACA) V. AUSTIN OSAKUE & 8 ORS (2018) 16 NWLR (PT. 1645) 199. The effect of the appellate court denying citizens at sub nations the impact of the law is that individuals, NGOs and the media in sub nations are not making innovative or public interest requests and institutional engagement. This is strangely the greatest albatross to the smooth

implementation of the Act at sub nation where transparency is more needed. The case is now at the Supreme Court and we are confident that the court will give the law a meaning that satisfies public interest. A look at the legislative history preceding the passage of the Act shows that the Act was designed to be used across federal, state and local government. This is not in the body of the law but the true intention of the law may be sourced from the legislative history. This is in addition to the fact that the law was designed to simplify public access to doors of governance and allow the citizens a close range peep of government decisions and proposals.

Even though we do not believe that the law ought to be legislated on by State Houses of Assembly to be applicable in states yet we cannot but applaud some states that have passed Freedom of Information Law like Ekiti, Delta and Imo State while we await assent to the one of Kwara State.

Also, some states that have passed Fiscal Responsibility Law like Edo State. We commend those who have taken the initiative to influence the passage of the law. One thing is common; the states which have signed FOIA or any open government law do not feel the quietness that greets governance in the past. We use this opportunity to draw attention to section 68 of of Edo State Public Financial management  & Fiscal Responsibility Law of 2018 which powers only persons with tax clearance certificate to enforce the law. We have approached the court to strike out the offending part of section 68 and declare such part of the law not in tandem with the provisions of the Fiscal Responsibility Act 2007 as inconsistent.

Agencies are defending suits rather than releasing records. Payment of lawyers to defend FOI request is topping MDAs budget head. Litigation ought to be the pill and not the snacks of FOI applications. Some

agencies give pseudo reply to FOI request and when you read the response, it does not answer the request made. When FOI profile is compiled MDAs send the response without attaching the request along. This is why statistics of compliance reel out by AGF in its report and performance briefing sounds bizarre. To plug the hole, AGF needs to audit FOI response with requests and FOI litigation of the MDAs.  It is not enough to say that MDAs responded to a request, the content of the response must be placed side by side the request submitted.

Freedom of information Counsel sent out 12 FOI requests and we are in court for the 10 denied requests. It is difficult to understand why men cannot obey the law they made or supervise. The FOIA is not suffering from lack of stakeholders’ patronage but government ineptitude. The Attorney General of Federation wears the toga of sanction under the FOI law. Beyond court fine in lieu of imprisonment, there should be letter of caution and sanction from AGF for violating MDAs. The current court fine is not beneficial to the requester and a disincentive to law as social engineer as the fine goes back to the offending parastatals.

Strengthening the stakes of sanction requires public censure and making FOIA as part of employees’ orientation program. This will further be reinforced by making responding to information requests a promotion review standard. Long live Nigeria

President Aigbokhan

info@foicounsel.net

+2348032683434

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