Much ado about Freedom of Information Act

Most of the state governments are yet to domesticate the new law, thereby rendering it ultra vires their domestic affairsFor a bill that spent 11 years on the table of the National Assembly, one would have expected that its metamorphosis into law would eventually pave way for public access to information in government circles which […]

Most of the state governments are yet to domesticate the new law, thereby rendering it ultra vires their domestic affairs
For a bill that spent 11 years on the table of the National Assembly, one would have expected that its metamorphosis into law would eventually pave way for public access to information in government circles which it seeks to promote.
Already, there were two verdicts of Federal High Courts in Nigeria with coordination jurisdiction over the spread of the Freedom of Information Law.
While the Federal High Court in Enugu held that states in Nigeria are bound to obey the new law, the Lagos Federal High Court held otherwise.
Stakeholders are worried that the bickering of state governments and the divergent interpretation of the Freedom of Information Law would not only create a dysfunctional effect of the new statutes, but will also keep citizens away from the happenings in government circles.
The FOI Act was enacted to unveil the secrecy with which public servants conceal the ordinary operations of government and public institutions. The thrust of the act is that public officers as custodians of public trust on behalf of the populace are accountable to the people and that the people have right to know about their activities.
Specifically, Section 2 (1) of the FOI Act states “the right of any person to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution, however described.”
Justice D. V. Agishi, of a Federal High Court in Enugu, had said in his ruling on the matter brought by the Civil Liberties Organisation, CLO, against the Enugu State Health Commissioner, George Eze, that the  Freedom of Information Act, is applicable in all states of the federation.
The CLO through its Southeast zonal director, Olu Omotayo, had prayed  the court for an order mandating the commissioner to disclose records and documents in respect of the contract awarded for the building and completion of the Diagnostics Center, Enugu, located at Old Trade Complex, Abakaliki Road.
It also prayed for a declaration that the failure of the commissioner to supply the records and documents in respect of the contact was wrongful and contrary to the provisions of clauses 2, 4 and 8(5) of the Freedom of Information Act 2011.
The CLO approached the court when its FOIA request for the said information was denied them by the state government.
The state government premised its action on the fact that it has no obligation under FOIA to provide the information sought as Enugu State was yet to adopt the act or enact same as its laws.
It said that the Federal High Court lacked jurisdiction to entertain the matter.
However, Justice Agishi, maintained that just like the Economic and Financial Crimes Commission, EFCC Act, among others, the FOI Act is applicable across all states of the country and that all public officers are bound to obey it.
But a Federal High Court in Lagos ruled that the 36 states of the federation are not bound by the Act, and thus could not be ordered to provide any information based on the provision of the act.
 Justice Okon Abang of the Federal High Court in Lagos in his verdict held that the FOI Act enacted by the National Assembly is only binding on the federal government and its agencies, adding that no state in the federation could be compelled to provide any information based on the act.
The judge’s verdict followed a suit instituted by the Legal Defence and Assistance Project (LEDAP) against Lagos, Imo, Rivers, Akwa Ibom and Delta for turning down its request for information on the amounts raised and received by the respective states from the Nigerian Capital Market through public offers or private placements between 2007 and 2011.
The group had requested to know the stockholders and how the proceeds received by the states from the transactions in the capital market were used, among other details.
The group therefore prayed the court to compel the states to provide the requested information pursuant to Section 2 of the FOI Act, 2011.
Lagos State Attorney General, Ade Ipaye, in an affidavit he personally deposed to, said the state was not bound by the provisions of the FOIA because it is a federal legislation.
 “The public records of Lagos State government are generated and kept by various ministries, departments, agencies and personnel of the state government in execution of their functions and responsibility in the service of the state,” he said.
Human rights lawyer, Barrister Femi Falana, SAN, said Justice Abang’s ruling on non-applicability of the Freedom of Information Act in states was not in order, adding that the law was of general application.
He said: ‘’I do not agree that the FOI Act is not applicable to the states. In fact, there is a judgment of Oyo State High Court on the same subject matter, when a citizen wanted information from the House of Assembly of the state. The state House of Assembly believes that the FOI Act was not applicable to the state, so the matter was taken to the court. The court ruled that the law was of general application in the country.’’
He said further that “even if the decision of Justice Abang was correct, I want to believe that the attention of the court is not drawn to a decision of the Court of Appeal in the suit filed by Dodo Vs Economic and Financial Crimes Commission and others, where it was held that by virtue of Article 9 of the African Charter, anybody who complains to the EFCC is entitled to a copy of the report, whether the EFCC or other anti-graft agencies want to prosecute or not.
According to him, the court in its decision only interpreted Article 9 of the African Charter which is of general application in the country.
Constitutional lawyer, Barrister Fred Agbaje, told our correspondent that the bickering over the applicability of the Freedom of Information Act is uncalled because the constitution is explicitly clear about the level government controls information.
He said: “I have always found it a little bit curious that the Freedom of Information Act should not be made applicable to states in the country. It is a federal enactment and don’t forget Nigeria operates federal system of government. The constitution has delineated areas of constitutional activities for components of federal states.
‘’I have not seen in the constitution of the country where it is specifically stated that the issue of information is on the concurrent list.
‘’A court had ruled that the Freedom of Information Act does not apply to state governments in Nigeria, but another court ruled otherwise.
 ‘’If we actually want to promote the cardinal and fundamental rights of Nigerians to freely express themselves to receive and impart opinion and ideas, why can’t the state government take advantage of the FOI Act.’’
Another constitutional lawyer, Chief Mike Ozekhome (SAN), said the court was in order to have ruled that the state governments are not bound to obey the FOI Act .
He explained that the only way the FoI Act can apply at state level is where the states decide to re-enact the provisions of the FoI Act in their own local legislations through their respective state Houses of Assembly.
He explained that under the Doctrine of Separation of Powers, federal law ought not to superimpose itself on the states, adding that any state that wishes to domesticate the FOI Act should do so.
“So the judgement is not a strange judgement,” he said.
According to the lawyer, the act made provisions only for federal government institutions, because the government could not legislate for states, adding that citizens could get state records by writing a petition to the state House of Assembly to domesticate the law.
Chief Robert Clarke, SAN, explained that each state’s House of Assembly in the country needs to pass the bill into law before it can get the desired clout.
“To give it efficacy and effectiveness in the 36 states of Nigeria, that bill will have to be passed by each House of Assembly of each state and assented to by the governor. For instance, the states under the constitution are autonomous in many ways.
 ‘’There is information relating to their activities in government which is only in the knowledge of the state government, but the effectiveness of the federal laws cannot force them to divulge. Therefore, it is necessary that each of the state House of Assemblies should pass its own Freedom of Information Law, so that the effectiveness and efficacy of the new law can be felt by all Nigerians in all facets of our life.”
Nigerians earnestly hope that the controversies over the applicability of the Freedom of Information Act is resolved in the interest of the country, especially as Nigeria brings in another leadership by May 29, which promises a paradigm shift in the system of governance.