A Welcome/Keynote Address by the Principal Coordinator, CAFSO-WRAG for Development David Tola Winjobi (PhD) On The Occasion Of A Two-Day Training For Principal Officers Of Selected Government Ministries On FOIA, On Wednesday 24th May 2017 At Queen’s Court Hotel, Ado-Ekiti Ekiti State, Nigeria
On behalf of the board, management and staff of CAFSO-WRAG for Development and OSIWA, I heartily welcome you all to this august meeting bringing together some key public officers associated with Freedom of Information Act. This is important because it is coming from the southwest, and the first of its kind in Nigeria as no other zone has ever come up with the idea of building the capacity of its key officers in relation to the implementation of FOIA.
It is no longer news that for 12 years, the Freedom of Information Act suffered setbacks from the legislators before it was passed into law in May 2011. No wonder its implementation has met with brick walls in most of the states. It is so astounding and encouraging that immediately it was passed by the National Assembly on the 27th of May the then President of the Federal Republic of Nigeria Dr Goodluck Ebele Jonathan did not waste time as he signed it into law on the 28th of May, 2011. Passing it into law is laudable while its purpose is to guarantee citizens’ rights to information. “The 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” (FOIA, 2011 Explanatory Memorandum).
FOIA falls under the specific context of the right-to-know and the rights to information as enshrined in international human rights law and widely recognized in democratic states. The right to seek and receive information is protected expressly in Article 19 of both the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). After all, in 2011, the UN Human Rights Committee, tasked with authoritatively interpreting the obligations imposed by the ICCPR on states parties, adopted a General Comment affirming that Article 19 of the ICCPR guarantees the human right “of everyone” to have access to information held by public authorities. Nigeria cannot be an exception among the states (countries) implementing FOIA while the local states (36 of them) cannot distance themselves from its implementation. Nigerians need the right to access information without conditions attached.
However, since the act was signed into law six years ago, there is an increasing relatively moderate level of awareness of the FOIA among members of the public in Nigeria and especially in the southwest geo-political zone that is taking the lead in the implementation. The situation is worse across the country as many public servants are not aware of the Act while those that are aware do not know the import of the Act. Apart from Ekiti State, no other State in the Southwest has enacted a State level FOI Law. As most public officials have been refusing the requesters, citizens are unable to express their legitimate viewpoints contrary to the objective of the Act to promote transparency through unfettered access to information and holding government accountable for fulfilling their constitutional and international human rights obligations (The Guardian 18/02/2014 p67).
In spite of the laudable and noble objectives of the FOI Act, there has been a lot of challenges towards the effective and efficient implementation of the FOI Act. Among such challenges are: poor record keeping, unwillingness on the part of government officials to accept the new information regime, attorney-generals’ ignorance, and conflicting judgments from the judiciary. Since public institutions are most likely to refuse to accede to provide the access to information, the judiciary is key to ensure compliance. While some judges have been progressive in the interpretation of the law, others have interpreted the Act to further entrench the culture of secrecy which the law was enacted to change.
Furthermore and worse still, some state governments also incorrectly opine that they are not bound by the provisions of the FOI Act. There have been litigations on a number of occasions on the applicability of the law at the state level. A bad example is that of the Attorney General for Oyo State who in April 2013 had said that his State (Oyo) was not bound by the Act (see ThisDay, December 6, 2013). Lagos State also towed the same line with his Oyo state counterpart. The judges are not helping the matter either as they give conflicting judgments on FOI A cases. The legislatures both at the state and the national assembly are not cooperating either as the cases below tend to show.
Justice Umaru Eri captured the situation succinctly when he said: “The FOI Act has existed for the past three years but what we have witnessed so far are conflicting decisions by the courts that have adjudicated on the cases involving the Act. “These conflicting decisions reveal lack of proper understanding of the purport, intendment and extent of the provisions of the Act. This development is not appropriate, especially, as the judiciary remains the most viable and veritable platform, and indeed the only functional forum for the resolution of all FOI disputes (Daily Independent, Thursday, May 22, 2014).
While some states promised to adopt the law, others had a contrary opinion. Some eminent lawyers then aligned with their argument, which was that the law is a piece of legislation that is only applicable to the federal government and its agencies. Their contention was that for the law to be applied in their respective states, it has to be domesticated by their Houses of Assembly. At the peak of the debate, eminent lawyers were divided on what the position of the law should be.
On September 17th 2013, Dr Tola Winjobi, the Zonal Coordinator of the South West FOIA coalition and a guest speaker at the Oyo State Stakeholders’ Town Meeting on Monitoring Democratic Governance Project (1999 Constitution Review) South West Geo-Political Zone took advantage of the Oyo State Commissioner for Justice and Attorney-General’s (AG’s) presence in order to ask for the position of the state on the FOIA. The AG stated that Oyo State was not bound by such federal law except the state on its own accord decided to enact the law. The Attorney-General opined that the provision of the FOIA was a mere replication of the existing documents when he asked ‘what are the novel issues/provisions that are in the document (FOIA) which our laws have not yet taken care of?…Nothing!’. To the AG, FOIA is like branding an old wine in a new bottle.
However, the Freedom of Information (FOI) Act recorded its first major victory in December 2013 when an Oyo State High Court sitting in Ibadan held that the application of the Act is for the entire federation and does not require its domestication by any state before it takes effect in each state of the federation. The implication of the judgment is that states across the country do not need to “domesticate” the FOI Act in their respective states before it becomes operational and for those that have domesticated the law in their respective states; the federal FOI Act is still superior to theirs (ThisDay, December 6, 2013).
In view of the extent of the challenges explained above, CAFSO-WRAG for Development, supported by Open Society Initiative for West Africa (OSIWA) believes that there is the need for robust and sustained interventions on the provision of Freedom of Information Act (FOIA) by strengthening FOIA institutions for the promotion of Nigerian citizens’ unfettered access to public records and information for transparency and accountability. Paramount is the need to create periodic dialogues and synergy on FOIA implementation among the key stakeholders including the judiciary staff, the office of the Attorney-General, principal officers of the Ministries Department and Agencies, the legislators, Nigerian Bar Association, the CSOs and the media. Important is the need to facilitate policy interface between the judiciary staff, legislators and legal professionals on one hand, and on the other hand, build the advocacy skills of the CSOs and the Media, and strengthen the skills of key public officials on Freedom of Information Act 2011 so as to facilitate citizens’ greater access to information, and promote transparency and accountability in government. All this our project intervention has done but mainly in the southwest with the hope that there is going to be a replication of this at the remaining five geo-political zones of Nigeria.
Nigerians have the right to know, and they have the right to request for public documents in public interest. We encourage all to read and digest this FOIA, and begin to use FOIA on different sectors of the economy because it is the right of Nigerian citizens to know how they are being governed including budget implementation of ministries, department and agencies of government.
One of the activities planned for the project is this two-day training for principal officers of selected government ministries in all the six southwest states of Nigeria. The specific objectives of the training are to:
(a) Equip the skills of the Principal Officers in government ministries in the area of FOI Act.
(b) Strengthen their skills in responding to requests in accordance with the FOIA so as to safe-guard penalties and fines even when the request is being turned down.
(c) Enlighten them on the role of public officials in the implementation of FOI Act in Southwest States.
The training is also in line with Section 13 of the FOI Act 2011 p.13 in organizing “appropriate training for government’s officials on the public right to access information or records held by the government or public institutions as provided for in the Act”. No state government has ever done this training. Ekiti is a foremost state when it comes to development issue. It is on record that Ekiti State was the first to come up with the state level law on Freedom of Information throughout the 36 states of the federation in Nigeria. This is a great achievement! Ekiti State will also be the first state in Nigeria that this workshop has ever been organized. Therefore, there is no better option of a state to organize this training than Ekiti State that has made its landmark on the issue of FOIA throughout Nigeria.