A Federal High Court judge sitting in Abuja, Justice Gabriel Kolawole, has called on the National Assembly to amend the Freedom of Information Act, 2011 to prevent persons who do not need information for specific reasons from applying for such information.
The judge said the Act at present had created legal rights without a corresponding legal duty, adding that this would “create a situation where scarce public resources, time and energy are permitted to be squandered in attending to a request for information which the person applying for it need not show that he needs.”
Justice Kolawole expressed the views in a ruling declining to grant leave to a non-governmental organization, Paradigm Initiative Nigeria (PIN) in a suit seeking an order of mandamus to compel the Special Adviser to the President on Media and Publicity, Dr. Reuben Abati, to disclose to the organization detailed information on the multi-million dollar contract awarded sometime in April 2013 to an Israeli company, Elbit Systems, to monitor internet communication in Nigeria.
The Stop Impunity Nigeria (S.I.N.) Campaign filed a Motion Ex-Parte on behalf of Paradigm Initiative on June 5, 2013, seeking leave of the court to apply for:
· A declaration that the denial of access and refusal to make available to PIN detailed information on the contract awarded to Elbit Systems, a company based in Haifa, Israel, for the supply of the Wise Intelligence Technology System for Intelligence Analysis and Cyber Defence for Nigeria by Dr Abati without an explanation constitutes an infringement of PIN’s rights guaranteed and protected by section 1 (1) of the Freedom Information Act, 2011.
· A declaration that the continued refusal of Dr Abati to make the information available to PIN despite the organization’s demand violates section 4 of the Freedom Information Act.
· An order of mandamus compelling Dr. Abati to make the information available to PIN.
PIN’s lawyer, Mr. Kelechi Nnajiaka argued the motion on June 6, after which Justice Kolawole adjourned his ruling to enable him “garner sufficient judicial decisions” on the provisions of the “novel” legislation.
Ruling on the motion, Justice Kolawole noted that in his written address, Mr. Nnajiaka had referred to the provisions of Order 34 Rule 3(1) of the Federal High Court (Civil Procedure) Rules, 2009 and submitted that under the Freedom of Information Act, an applicant “needs not demonstrate any specific interest in the information being applied for”.
Disagreeing with the view, the judge said unless adequate statutory safeguards are embedded in the Act, the underlying intention of the government when it enacted the Law may be undermined or subverted as “irate individuals or busy bodies will abuse the rights which it has created with regard to information on public administration.”
Saying he should not be “seen as an advocate for a restrictive or secretive process in public administration”, Justice Kolawole claimed that there is no “country in the world where access to all forms of public records are thrown open even to an Applicant who is not required to show any specific interest in the information requested from a public body.”
He insisted that “the responsibility to use the Act by Nigerians responsibly as an instrument to ensure transparency in governance should not be left so loose and at large without any form of checks and perhaps, balances.”
According to him, “The checks or safeguards may be legislative in nature or judicial in form as was the case in the provision of Order 34 Rule 3(4) of the Federal High Court (Civil Procedure) Rules, 2009 which requires an Applicant for any of the prerogative orders for judicial review to demonstrate that he has ‘sufficient interest in the subject matter to which the application for leave relates’”.
Noting that the “safety valve as a judicial instrument to prevent abuse of a resort to the provision of Order 34 of the Federal High Court (Civil Procedure) Rules, 2009 has been exempted from the operation of the Freedom of Information Act,” Justice Kolawole stressed that: “it is my view that it is also part of transparency that rights created by enactments such as the Freedom of Information Act, 2011 are themselves not abused by irate litigants or those one may describe as ‘busy bodies’”.
He said: “I really cannot see any logic in terms of correlative duties and of jural relations between an Act that creates and vests a right in a person on the one hand, and the same Act, on the other, states that such person does not have to demonstrate any specific interest in the information being applied for! The Act has created legal rights without a corresponding legal duty. This is to create a situation where scarce public resources, time and energy are permitted to be squandered in attending to a request for information which the person applying for it need not show that he needs if it he is excused by the Act from showing that he has any specific interest in the information being applied for.”
Justice Kolawole called on the National Assembly to undertake “a review of the Act so as to ensure that access to information is only made available to such Applicants who genuinely need it for specific purpose(s).”
The judge noted that reading through the processes filed on behalf of PIN in the case, the Applicant merely stated in paragraph (iii) of the Statement filed that the Respondent is the “Special Adviser to the President on Media and Publicity” but did not state that the Respondent in that capacity was being sued as one who awarded the contract in issue.
The judge also questioned whether it was sufficient for Dr. Abati to be sued for being a “Special Adviser” to the President on Media and Publicity, when he has not been shown under any law to be involved in the award of the contact on which information is being requested.
He said he was not aware of any legislation by which the “Office of a Special Adviser to the President on Media and Publicity” was created as to make “the Respondent as sued in the Motion Ex-parte to be seen as a public body, authority or officer who is prima facie amendable to prerogative orders of mandamus which are judicial instruments to enforce the performance of public duties.”
Justice Kolawole held that “it will be an injudicious exercise of my discretion, pursuant to the provisions of Order 34 of the Federal High Court (Civil Procedure) Rule, 2009 to proceed by granting leave to the Applicant to apply for an order of mandamus against a Respondent who has not been sued or shown to be a public institution or authority, and even as an ‘officer of the Federal Government in charge of information’, that has not been shown to have awarded any contract and to be amenable to the issuance of prerogative writs of mandamus to compel the performance of a public duty after a refusal to do so has been established.”
He said for these reasons, he was “unable to accede to the Applicant’s Motion Ex-parte” and therefore struck out the Motion.