A MEMORANDUM PRESENTED TO THE SENATE COMMITTEE ON INFORMATION AT THE PUBLIC HEARING ON THE FREEDOM OF INFORMATION BILL 2005

ON TUESDAY, APRIL 26 2005

BY CHIEF AJIBOLA OGUNSHOLA, CHAIRMAN, PUNCH NIGERIA LIMITED

Protocols, ~

The political and economic problems of Nigeria have their roots in official secrecy. This statement is so obvious and the evidence so compelling that it does not require further elaboration at this forum.

The main tool is the Official Secrets Act of 1962, put in place by the British colonial government and retained in the statute books ever since by successive governments. This act denies access to official information by providing for the classification of such information. The law also prescribes prison terms and fines for any public official who obtains, reproduces, retains or transmits any classified matter to a person to whom he is not authorized on behalf of the government to transmit.

However, it failed to define or clearly delineate the scope and matters that could be classified, as against that which need not be.

There are more contemporary laws like the Criminal Code (applicable in southern Nigeria) and the Penal Code (for the North), which impede access by members of the public to official information. The Criminal Code, for instance, imputes guilt to any public official who "publishes or communicates any fact which comes to his knowledge by virtue of his office and which it is his duty to keep secret, or any document which comes to his possession by virtue of his office and which it is his duty to keep secret."

Amidst these highly restrictive laws, the greatest allowance made for information flow is encoded in section 39 of the 1999 Constitution (a replica of section 36 of the 1979 Constitution) which provides in sub­section (i) that, "Every person shall be entitled to freedom of expression, including freedom to hold opinion and to receive and impart ideas and information without interference." But the provisions of the entire section have not invalidated the restrictive laws.

Section 22, which is not justiciable, states that, "The press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this chapter, and to uphold the responsibility and accountability of the government to the people." But there is no corresponding obligation either in the constitution on anywhere in our laws on the government itself to make itself accountable to the people.

Much as the constitution appeared to have made formal provision for free information flow, the culture of official secrecy that had ossified over the years has subjected virtually every document or item of information in government to being routinely branded as "confidential," "top secret," "restricted," "classified," etc. This posed enormous obstacle to the watchdog role of the media, and its responsibility to inform the public. The constitutional provision was particularly put to the judicial test in the case of Tony Momoh VS. the Senate, in which a Lagos High Court judgment, which upheld the journalist's right to confidentiality of his source was later upturned by the Court of Appeal. What this means is that the journalist has no legal protection to guarantee the confidentiality of his sources. And this is the case when such sources (public officials) are forbidden under existing laws to disclose government information. In such a circumstance, the sources would simply dry up.

It was against this backdrop that the 'House of Representatives, on August 25, 2004, passed the Freedom of Information Bill, which was a private bill sponsored and coordinated by the Freedom of Information Coalition. This bill, which is yet to be passed by the Senate, prescribes free and mandatory access to certain classes of official information that hitherto are classified.

No fewer than 53 countries, including South Africa, now have freedom of information law in one form or another. Although the specifications of the law vary from one country to the other, the central feature is the right it gives individuals to request information, records or documents that are in the custody of public officials and government agencies. However, the right of access to information is never absolute, as nearly all the countries having this law stipulate exemptions for certain types of information. The Nigerian bill in particular stipulates exemptions in sections 14 to 21, as well as section 24, for information on matters pertaining to international affairs and defence, law enforcement and investigations, trade secrets or financial, commercial or technical information that has economic value to Nigeria, personal information, matters covered by the solicitor-client privilege, among others.

It seems that the Senate has shown a significant reluctance to date in following after the lower chamber of the National Assembly to pass this bill into law. In so doing, it is denying the benefits that would accrue, not only to the media, but also to the entire Nigerian society.

Experiences of many nations that have adopted the access to information law showed that there is a direct link between the law and the culture of transparency in governance. One of America's constitutional fathers, James Madison, once said, "A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy, or perhaps both." According to Frank Vogt in a paper in 1999 on the media, for the Transparency International, many of the countries rated as largely corruption-free on the TI Index, for instance those in Scandinavia, have the most far-reaching and effective freedom of information laws.

The people's right to know is the heart of transparency, which is essential in making those entrusted with power accountable to the public.

The ways in which a freedom of information law reduces corruption include the following:

• By making available information about procurement processes and successful bids, it becomes more difficult for officials to engage in unfair contracting practices.
   

• It becomes more difficult for senior government officials to make larger policy decisions that are not supported by sound analysis.

• Access to information about the formulation of policy can reveal instances in which policy decisions were taken without careful consideration, and instances where decisions that were taken contradicted advice provided by professionals within the public service.

• Access to information on the facts informing government's decisions reduces the chances of such decisions being taken for improper reasons.

The Freedom of Information Bill, if passed, will:

• Improve the dissemination of information through the mass media and enable it to discharge its constitutional duty (under section 22 of the Constitution) of holding the government accountable to the people.

• Enable the media to have access to more accurate information that would enhance its relevance and reliability.

• Foster transparency in governance, since information about the conduct of government could no longer be kept classified. This has the effect of stripping away the cover of secrecy under which most (if indeed not all) misdeeds in government had been perpetrated. A situation as this is particularly relevant to the vigorous anti-corruption crusade by the Olusegun Obasanjo administration, and it will help the administration to enlist the support and partnership of the media in this noble cause.

• Minimise crisis in the nationhood, as many of the crises that happened hitherto were partly due to inadequate or complete absence of necessary information to enlighten opinion leaders and better place them to advise their respective societies.

• Enable journalists to confirm their information directly from government sources when they need to do so.

From the foregoing, you will agree with me that a freedom of information law will be useful in a country like ours, as a basic pillar to ward off the plague of corruption.

Mr. Chairman Sir, I urge your Committee to approve the Bill as presented; I also urge each of your members to use their individual clout to ensure its passage at the plenary session of the Senate.

I thank you.

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