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Background
Origins of the
Freedom of Information Campaign
The idea of a
Freedom of Information law for Nigeria was conceived in 1993 by three
different organisations, working independently of each other. The
organisations, Media Rights Agenda (MRA), Civil Liberties Organisation (CLO)
and the Nigeria Union of Journalists (NUJ), subsequently agreed to work
together on a campaign for the enactment of a Freedom of Information Act.
The objective of
the campaign was to lay down as a legal principle the right of access to
documents and information in the custody of the government or its
officials and agencies as a necessary corollary to the guarantee of
freedom of expression. It was also aimed at creating mechanisms for the
effective exercise of this right.
The consultations
among the initial partner organisations were geared, among other things,
towards determining the various interest groups likely to be affected by
the legislation; those who should have a right or standing to request
information under a freedom of information regime and under what
circumstances information may be denied those seeking them; what
departments or organs of government would be responsible for releasing
information and documents to those seeking them; and determining the
agencies and arms of government to which the legislation would extend.
Media Rights Agenda
was designated the technical partner in the project under the arrangement
agreed upon for taking the project forward. In keeping with this role, it
was asked to produce a draft Freedom of Information Law.
Following extensive
research, MRA’s Legal Directorate headed by Mr. Tunde Fagbohunlu of the
law firm of Aluko and Oyebode, produced in 1994 a draft bill entitled
“Draft Access to Public Records and Official Information Act”. The content
of the draft drew substantially from the experiences of other countries
operating freedom of information laws. But it was also based on
consultations among the three organisations and suggestions made by
practising Nigerian journalists in the questionnaires administered by
Media Rights Agenda.
Consultative
Process in Finalising the Freedom of Information Bill
The “Draft Access
to Public Records and Information Act” produced by Media Rights Agenda in
1994 became the basis for further discussions and debates on the issue and
was subsequently subjected to a series of review exercises involving
various stakeholders.
The first of such
exercises was a two-day technical workshop jointly organised by the three
partner organisations on March 10 and 11, 1995 to examine and revise the
draft, taking into consideration the views of other interest groups, which
might use the proposed legislation. Participants in the workshop included
human rights workers, journalists, lawyers, university lecturers and
representatives of the National Broadcasting Commission and the Federal
Ministry of Information.
Chaired by eminent
journalist and Nigeria’s former Information Minister, Prince Tony Momoh,
who is also a lawyer, the main objective of the workshop was to achieve a
consensus among the various interest groups that are affected by the
availability or otherwise of a legally protected right of access to
government held information, on the need for a Freedom of Information Act
in Nigeria and the content of such a law.
There was a common
understanding among the various interest groups represented at the
workshop that the legal regime governing access to government held
information in Nigeria must undergo a structural transformation. Their
conclusion was that since statutes which permit access to official
information in Nigeria were few, the overall effect is that a culture of
secrecy prevails in all government institutions, nurtured and given legal
effect to by such laws as the Official Secrets Act and some provisions in
the Criminal Code which make it an offence to disclose certain types of
government held information.
The general
consensus at the workshop was that this existing legal regime should be
replaced with one in which there is a general right of access to
government held information, unless such a right is specifically removed
by statute in certain circumstances and to protect specific, statutorily
recognised interests.
At the end of the
workshop, the participants issued a 13-point Communiqué, inter alia,
as follows:
Participants
representing diverse interest groups, including the press, academia,
government institutions, non-governmental organizations, the legal
profession, unions, etc., met for two days, March 10th and 11th
1995, at the Nigerian Institute of Advanced Legal Studies, Lagos under the
auspices of the Civil Liberties Organisation (CLO), the Media Rights
Agenda (MRA) and the Nigerian Union of Journalists (NUJ) at a technical
conference on the Freedom of Information Act to consider the first draft
of a proposed legislation on Access to Public Records and Information. At
the end of the conference, the participants agreed and resolved as
follows:
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1. That
every person whether a citizen of Nigeria or not, should have a legally
enforceable right to be given, on request, access to any record under the
control of any government or public institution.
2. That the Access to Public Records and
Information Bill should be enacted into law to give effect to Section 36
of the 1979 Constitution of the Federal Republic of Nigeria, which
guarantees every person the right to hold opinions and to receive and
impart ideas and information without interference.
3. That
Executive, legislative and judicial organs and institutions should be
subject to freedom of information legislation.
4. That
through a freedom of information culture which will engender openness,
transparency and accountability in government, Nigerians can overcome the
vicious circle of corruption, underdevelopment and political instability.
5. That all
laws inconsistent with the realization of the ideal of free flow of
information such as the Official Secrets Act, the Sedition law, the
National Broadcasting Commission Decree, the Newspapers Decree, etc.
should be reviewed.
6. The
Draft of the Access to Public Records and Information Bill adopted by
participants at the Conference should be enacted into law without delay.
7. That a
Monitoring and Campaigns Committee (MCC), comprising the Civil Liberties
Organisation, Media Rights Agenda and the Nigeria Union of Journalists be
set up to, among other things:
i) Circulate the
Access to Public Records and Information Bill and the Conference Report to
all interest groups which should be involved in the advocacy for the
enactment of the legislation and particularly: the Nigerian Bar
Association (NBA); human rights organisations and other non-governmental
organisations; environmental protection organisations; minority rights
groups; professional bodies and associations; consumer rights protection
groups; the business community; the academic community; the Nigerian Press
Organisation (NPO); the Nigerian Institute of Public Relations; and the
Newspapers Proprietors Association of Nigeria (NPAN);
ii) Urge the
Nigerian Bar Association to put the Access to Public Records and
Information issues on its agenda at all levels;
iii) Urge the
Nigeria Union of Journalists to put the Access to Public Records and
Information issue on its agenda at all levels;
iv) Formally
contact the Nigerian Press Council with a view to securing its support and
assistance in ensuring the enactment of the legislation;
v) Send the Draft
Bill to the Federal Ministry of Information and the Federal Ministry of
Justice with a view to having the Bill enacted into law; and
vi) Generally
raise public awareness on the Access to Public Records and Information
issue.
8. That the right to receive and
impart information and ideas is a fundamental constituent of the right to
freedom of expression and as such Nigerians should imbibe the culture of
protesting any time they are deprived of information through the closure
or proscription of media institutions.
9. That the
duty to be fair and just is a corollary to a right of access to public
records and information.
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In accordance with
the agreement reached at the workshop, Media Rights Agenda produced a
revised second draft of the proposed legislation later that year to
reflect the consensus of the participants and stakeholders regarding the
contents of the proposed law. But the sponsoring organisations, the CLO,
MRA and NUJ, however, continued to invite views and comments from
stakeholders and other concerned parties within and outside Nigeria.
A Campaigns and
Monitoring Committee was established in accordance with the resolutions of
the workshop to carry out follow-up actions on the campaign for the
enactment of the revised draft into law. However, although getting
constitutional backing for the legislation was of crucial importance, and
the National Constitutional Conference set up by the regime of the late
Head of State, General Sani Abacha, was then still in session, it was
agreed by the participating groups that it would be inappropriate to lobby
the Conference to provide constitutional support for the draft law. The
rationale was that having rejected the Conference as lacking in
credibility, a civil society advocacy directed at it would confer
legitimacy on it and its work. Therefore, the draft was never submitted to
the Conference. But it was sent to the Minister for Information, and the
Attorney-General of the Federation and Minister of Justice.
Members of the
committee also met with the then Attorney-General of the Federation and
Minister of Justice, Dr. Olu Onagoruwa, to secure his support for the
enactment of the draft into law. Although he was in principle supportive
of the idea, it was clear that he lacked the political influence within
the Abacha regime to push the draft through.
The political
situation in Nigeria deteriorated shortly afterwards as the Abacha regime
became more repressive and brutal and the law was never passed.
Following the death
of General Abacha in June 1998, the regime of Major-General Abdulsalami
Abubakar which took over political authority in the country immediately
embarked on a transition to civil rule programme under which elections
were held into various levels of government between December 1998 and
February 1999.
This development
created the necessary political climate to revisit the issue. Another
opportunity to review the draft law and its content came up in March 1999
when Media Rights Agenda, working with ARTICLE 19, the International
Centre Against Censorship,
in London; and the Nigerian National Human Rights Commission, organized a
Workshop on Media Law Reform in Nigeria at Ota in Ogun State. Held
between March 16 and 18, 1999, the workshop was attended by 61
representatives of the media, both independent and state controlled;
regulatory bodies; the legal profession; international institutions; local
and international non-governmental organizations; and other interest
groups.
Participants at the
workshop included the United Nations Special Rapporteur on Freedom of
Opinion and Expression, Dr. Abid Hussain; a member of the European
Parliament, Mrs. Glenys Kinnock; Judge John Oliver Manyarara, Chairman of
the Board of Trustees of the Media Institute of Southern Africa (MISA);
Justice Paul Kedi Nwokedi (rtd), the then Chairman of the Nigerian Human
Rights Commission; Professor Auwalu Hamisu Yadudu, then Special Adviser to
the Head of State on Legal Matters; Prince Tony Momoh, a former Minister
of Information; then Senator-elect, Tokunbo Afikuyomi; Ms Bettina Peters,
Deputy General Secretary of the International Federation of Journalists (IFJ)
in Belgium; Mr Kabral Blay-Amihere, then President of the West African
Journalists Association (WAJA); Ms Jeanne Seck of the United Nations
Scientific and Cultural Organisation (UNESCO) in Paris, Ms Brigid
O’Connor, Regional Information Coordinator for West Africa at the British
Council; and Mr Olisa Agbakoba (SAN).
A substantial part
of the workshop was devoted to discussion of the draft Freedom of
Information law, which was further reviewed. In The Ota Platform of
Action on Media Law Reform in Nigeria, a consensus document which
emerged at the end of that workshop, further recommendations were made on
the content of the draft law. The recommendations include the following:
a. In
addition to a constitutional guarantee of the right of access to public
information, a Freedom of Information Act should be enacted at the
earliest possible opportunity, reflecting the principle of maximum
disclosure.
b. The
Draft Access to Public Records and Official Information Bill published by
Media Rights Agenda, the Civil Liberties Organisation, and the Nigeria
Union of Journalists should be taken as the basis for discussion on this
issue, but its provisions require further review.
c. All
legislation, which unduly inhibit or restrict the right of Freedom of
Information, such as the Official Secrets Act, should be amended to
reflect the principles of the Freedom of Information Act.
d. The cost
of obtaining public information should be affordable to the majority
of citizens.
e. The
proposed Act should contain a provision, which stipulates that, the
individual requesting the information need not demonstrate any
specific interest in the information requested.
f.
Doctoring of public records before they are released to the person, entity
or community requesting for them and obstruction of access to public
records should be made a criminal offence.
g. In the
application of any exemption, there should be a presumption of access
to public information in the proposed Act. Exemptions should be
narrowly drawn and subject to a test of actual harm.
Following these
recommendation, Media Rights Agenda revised the draft access to
information law once again to give effect to the agreements reached at the
workshop.
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