Proactive disclosure has become a cornerstone of modern administrative transparency. However, the absence of a dedicated framework for its implementation within the multi-level structure creates opportunities for opacity and administrative abuse. To address this gap, Africa Union should consider developing a specific regulatory instrument to guide and enforce proactive disclosure obligations.
Free and fair access to information has also become an essential right recognized all over the world. Information is extremely important to people; it is an essential component of our daily lives, and the need for information is pervasive across various domains. From personal growth to economic development, access to relevant and accurate information is critical to making informed decisions and achieving our goals.
Proactive disclosure entails the release of essential information to the public by the holder without the need to make a request. It is the publication of the records and information in a timely manner, simplified in print and electronic version for ease of public access, usage and understanding.
The Advisory Paper prepared for the Federal Government of Nigeria by the Special Rapporteur on Freedom of Expression and Access to Information in Africa (2018) emphasizes the obligation of public institutions to proactively publish specific categories of information, as required under Section 2(3) of the Freedom of Information Act, 2011.
This provision reflects a global standard of transparency and open governance, where information is made available as a public good rather than released only upon request. The Freedom of Information Act, 2011 requires that every public institution publish clear descriptions of its functions, programmes, activities, and operational structure, including the responsibilities of its departments, divisions, and branches. Institutions must also provide a comprehensive list of all classes of records under their control, with sufficient detail to promote accessibility and understanding.
In addition, public bodies are expected to disclose job manuals, policy documents, and final opinions, including concurring and dissenting views, as well as substantive rules, planning policies, recommendations, decisions, factual reports, inspection reports, and studies. Information relating to the receipt and expenditure of public funds, including budgets, procurement details, and financial statements, must also be made public.
Proactive disclosure further extends to the publication of the names, designations, salaries, and dates of employment of all officers and employees of the institution. It also includes the final voting records of officials in institutional proceedings, lists of files containing applications for contracts, permits, grants, licenses, or agreements, and reports, studies, or publications prepared by independent contractors on behalf of the institution.
Similarly, institutions are required to make available information relating to grants or contracts entered into with public or private entities, as well as the name and address of the designated Freedom of Information (FOI) officer responsible for handling information requests. They must also maintain and disclose frequently requested or trending records to ensure that high-demand information is readily accessible to the public without a formal request.
The African Union recognizes the need for proactive disclosure and it has influenced various instruments such as the African Charter on Human and Peoples’ Rights that has enabled the right of individuals to freely access information and express their opinions.
The continental framework emphasizes the critical importance of ensuring that information is easily accessible to the public, thereby fostering transparency and encouraging active participation in both societal and governmental processes. It does not only affirms the need for open access to information but also strengthens the broader principle of proactive disclosure. The African Commission on Human and Peoples’ Rights adopted the Guidelines on Access to Information and Elections in Africa in 2017 to provide guidance to States on the categories of information on the electoral process that must, at the minimum, be proactively disclosed.
The Guidelines requires any election management body in Africa, during pre-election periods, to proactively disclose voters roll containing information allowing the unique identification of each voter, including the full name, identity number, photograph (where it exists), gender and age of each voter.
This was also reiterated and referenced in the Advisory Paper prepared for the Federal Government of Nigeria by the Special Rapporteur on Freedom of Expression and Access to Information in Africa. The advisory paper emphasized that Independent National Electoral Commission (INEC) should implement a significant level of proactive disclosure by publishing the roll of registered voters. The African Union Convention on Preventing and Combating Corruption (AUCPCC), 2003 provides for free access to information to aid in the fight against corruption for individuals and civil societies, respectively. Articles 9 and 12 point out the need for governments to create enabling atmospheres for information to be freely accessible to the public as a way of strengthening proactive disclosure.
The Economic Community of West African States (ECOWAS) via multiple of its instruments, promotes policies and ideologies in relation to proactive disclosure. It relies on a range of instruments and encourages individual countries to implement proactive disclosure practices at the national level.
ECOWAS acknowledges the significance of transparency, accountability, and effective governance in fostering regional development. As part of its efforts to promote democracy, combat corruption, and enhance institutional strength, ECOWAS has included provisions on proactive disclosure within various regional frameworks, protocols, and policies.
In the Economic Community of West African States Protocol on the Fight against Corruption (2001), the regional body obliges member states to set up means by which public disclosure of certain information as permitted by law. It is done to ensure transparency, public participation and aid in preventing corruption. The processes outlined by the ECOWAS to prevent corrupt practices in the protocol all embody proactive disclosure principles.
The ECOWAS Protocol on Democracy and Good Governance, 2001, is also a key regional document that emphasizes the importance of transparency, accountability, and the rule of law in West Africa. This protocol calls for the establishment of institutions to ensure good governance, which includes measures related to proactive disclosure of public information. The processes outlined by the ECOWAS to promote public participation and free and fair elections in the protocol all embody proactive disclosure principles.
In some of its provisions, ECOWAS emphasizes the need for public institutions to be transparent in their operations, including the management of public resources. This call for transparency in operations and resources is supportive of the goals one would seek when opting for proactive disclosure. Following the efforts of the continental and regional body, many member states and African nations have implemented these principles as major parts of their laws and administrations. The Freedom of Information Act (FOIA), 2011 of Nigeria for instance, mandates public institutions to keep information on all their affairs in a manner easily accessible for use.
The principle of proactive disclosure has gained continental acclaim and can be found in many multi-level instruments. The law imposes a proactive disclosure obligation on every public institution. This suggests that public institutions should make relevant information, records or documents available to the public on its initiative without anyone having to first submit a request for the information.
Proactive disclosure remains one of the potent tools for ease of public disclosure and ironically most unexplored in Nigeria. One area where proactive disclosure has an advantage is cost of compliance. It also reduces manpower and waste of time. This is because requesters might get the information they seek on the notice board or website and may require no further application. There is no better way to promote the enforcement of access to information laws in Africa other than proactive disclosure. The commitment to proactive disclosure by MDAs in Nigeria is practically far reaching. Non-access to regularly updated information on websites of public institutions have unease the administrative burden and increase the resources of public institutions on public record disclosure. There have been several litigations and court judgments against many public institutions particularly as it relates to non-responsive request but have not correspondingly influenced other public institutions to comply with proactive disclosure.
For now, proactive disclosure is not part of core assessment of MDAs on FOIA compliance. From inception, the Federal Ministry of Justice has been coordinating the FOI implementation in Nigeria and it relies on annual request review returns to adjudge performance. The practice of releasing essential information that the public would be interested in before the request holds several benefits, from public participation to increasing government trust and transparency to aiding in the fight against corrupt practices. Proactive disclosure has become a cornerstone of modern administrative transparency. However, the absence of a dedicated framework for its implementation within the multi-level structure creates opportunities for opacity and administrative abuse. To address this gap, Africa Union should consider developing a specific regulatory instrument to guide and enforce proactive disclosure obligations.
Furthermore, both request–response mechanisms and proactive publication practices should be integrated into the FOIA audit standards, ensuring that institutions are assessed not only on their compliance with information requests but also on their commitment to open, voluntary disclosure.
President Aigbokhan is a development lawyer and is the Gani Fawehinmi Impact Awardee 2024 and the Black History Month Nominee, MLDI, UK, 2023