After 18 months in operation, Nigeria’s Freedom of Information Act still struggles with huge challenges
President Goodluck Jonathan signing the FOI Act in 2011
Recently, a civil society group, the Nigerian Contract Monitoring Coalition, instituted a case against the Power Holding Company of Nigeria, PHCN, at a Federal High Court in Abuja.
The suit, instituted on behalf of the Coalition by the Public and Private Development Center, PPDC,was sequel to the refusal of PHCN to release details of a World Bank- funded PHCN contract for the supply and installation of High Voltage Distribution systems in its facilities in Abuja, Lagos, and Ibadan.
In August, the coalition had applied to PHCN and the Abuja Electricity Distribution Company Plc, one of the beneficiary companies, for copies of procurement documents and information relating to the contract for the supplies materials.
Information requested by the coalition included the report of the needs assessment that preceded the contract, documentation on the design and specification requirements, bidding documents issued to all bidders, a list of all the contractors that submitted bids, copies of the letters of award, as well as the names and addresses of all distribution companies on whose behalf the procurement was undertaken.
The request was turned down by both PHCN Abuja and Electricity Distribution Company Plc, leaving the coalition with no option but to approach the court with a motion exparte seeking the court’s order granting it leave to apply for the prerogative order of mandamus to compel PHCN, its general manager in the management unit, B.C. Nwozor, and the attorney-general of the federation to provide it with details of the contract.
In a significant ruling for access to information in Nigeria, Justice Ademola granted the coalition’s application after hearing its lawyer’s arguments in support of the motion. The ruling was a major victory for the coalition as PHCN immediately after the judgment released the information requested.
About 18 months after the Freedom of Information Act was passed into law, Nigerians still have a difficult time accessing public records. In most cases, government officials, ministries and agencies merely ignore requests for information.
Thus, like the Nigerian Contract Monitoring Coalition, many individuals and groups, particularly in civil society, have resorted to the courts to force information out of state officials and agencies.
One of the individual FOIA requests that ended up in court is the one by a legal practitioner, Ojukwu Chikaosolu, who applied for a court’s order to compel the executive secretary of the Petroleum Products Pricing Regulatory Agency, PPPRA, Reginald Stanley, to release information on the list of companies that had obtained import licenses and the volumes allocated in their respective permits.
Chikaosolu had on July 19 sought for the information with a view to exposing sharp and fraudulent practices in the petroleum import transactions through an informative and open process.
He also demanded to know whether the executive secretary had resigned his employment with the Nigerian National Petroleum Corporation, NNPC, before being appointed to his present position.
The agency refused to release the requested information claiming that it does not fall within the public information envisaged by the FOI Act.
The agency, in a letter signed by Ja’afar Abubakar in response to the inquiries wrote, “We …regret to inform you that the request is denied as the information required does not fall within the information that is caused to be published by a public institution under the FOI Act.”
However, Justice Gabriel Kolawole of the Abuja Federal High Court granted the lawyer the requested leave for an order to compel the executive secretary and the agency to release the requested information.
The Nigerian Contract Monitoring Coalition and Chikaosolu were lucky as they got rulings compelling the information requested to be released. Many similar requests have not gotten such reliefs from the courts.
For instance, Boniface Okezie, president, Progressive Shareholders Association, PSA, is in court with the Central Bank of Nigeria, CBN, after the apex bank ignored his request for information. But the wheel of justice is rather slow.
Okezie had, in January, 2012, sought to know the cost to the central bank, the government and people of Nigeria so far, of the banking reforms instituted by the CBN. Specifically, he wanted to know the amount of legal fees paid and how much of the amount is paid to and/or to be paid to the law firms of Olaniwun Ajayi and Kola Awodein & Co.
Also of interest to Okezie is the total sum paid in respect of the prosecution of Cecilia Ibru, former managing director of Oceanic Bank Plc and how much of this sum was in the form of commissions on the property recovered from her.
In his January 26th letter to the CBN, Okezie also demanded to know the total cash and value of property recovered from Cicelia Ibru, the whereabouts of the money and property recovered, and what part of this cash and property has been returned to Oceanic Bank and/ or its shareholders. The case is still in court and Okezie still has not gotten the information he asked for.
What worries many Nigerians is that in some cases even when the court instructs public institutions to disclose information, such court orders are ignored.
This is a dangerous trend, said Ene Enonche, national coordinator of Right to Know, R2K, an access to information group, who is worried at the refusal of some public institutions to comply with the FOI Act even after court judgments have been issued.
“While the testing of the FOI Act in our courts is good for precedence and interpretation of the law, it is more sensible for public institutions to develop the will to comply with the clear provisions of the Act”, she said.
According to her, open and transparent governance is not enhanced when citizens feel that they need to resort to the long and arduous path of litigation before they are able to obtain information from public institutions.
“Apart from the length of time it would take for litigations and appeals, there is also the considerable expense of the entire legal process, beyond the reach of many Nigerians,” Ene observed.
Nigeria’s access to information law was passed on May 28, in the dying days of the last legislative assembly, after nearly a decade in the National Assembly. The FOI Act affords every Nigerian the right to access or request for information domiciled with any public official, agency or institution. Apart from laying out the scope of public information the public can access, the ACT also provides details about time limits, exemptions, proactive publication of information as well as mandatory training for officials of government.
In a society where a culture of secrecy has traditionally surrounded information about government, where state institutions hardly keep records and where civil servants have for decades been protected by the Official Secrets Act and similar laws from disclosing sensitive information, it is obvious that a lot needs to be done to make the Act work.
Unfortunately, however, government has neglected doing many things that ought to be put in place by the government to facilitate implementation have been neglected. For example, Section 13 of the FOI Act provides that government agencies will train their staff to be able to comply.
“Every government or public institution must ensure the provision of appropriate training for its officials on public’s right to access to information or records held by government or public institutions,” the Act mandates.
But training for public servants, where it has been done, has been uncoordinated and, at best, haphazard and half – hearted. Thus, almost two years since the enactment of the FOI Act, government officials are yet to come to terms with their responsibilities under the Act.
One agency of government that has obviously not come to grasp with what the Act demands of it is the Code of Conduct Bureau, CCB, which has repeatedly denied Nigerian access to the assets declaration of public officers.
Several civil society organisations, including the African Centre for Media and Information Literacy, demanded from the Bureau details of the assets declared to it by President Goodluck Jonathn. This rash of demands for the President’s asset to be made public followed a declaration by Jonathan during a televised media chat in June that he did not give a damn about public declaration of assets.