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Public
Hearing on the Freedom of Information Bill
Organized by:
The Committee on
Information, Senate of the Federal Republic of Nigeria
On March 22, 2005, at
the National Assembly Complex, Abuja
Freedom of Information
as the Touchstone of all other Freedoms
Presentation by:
Osaro Odemwingie
Coordinator, Freedom
of Information Coalition
c/o Media Rights Agenda
10, Agboola Aina Street
off Amore Street
Ikeja,
Lagos
Tel: 01-4936033 – 4
Mobile: 08035534623
Democracy And Its Obligations
Democracy as the
system of government most popular around the world has as its basic potent
selling appeal the element of sovereignty residing on the people. Nigeria
is no exception to this recognition. This is aptly captured in the
Constitution when it declares: “Sovereignty belongs to the people of
Nigeria from whom
government through this Constitution derives all its powers and
authority”. It goes further to say that “the security and welfare of the
people shall be the primary purpose of government and …that the
participation by the people in their government shall be ensured in
accordance with the provisions of this Constitution”.
An essential
feature of sovereignty is accountability to the people by government
officials. On the other hand, accountability is achieved through openness,
access to public records and information, the quality and extent of public
debate and tolerance of divergent views in the society. This in turn
ensures good governance and development, which are the end expectations
and test of any democracy.
Indeed, the Constitution recognizes
this fact and hence provides 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”
(emphasis mine).
But it is worth
emphasizing the right to information is not en end in its self. Rather, it
seeks also to facilitate access of a number of other fundamental rights of
the individuals such as those contained in Section 33 to 46 in Chapter 4
of the Constitution dealing with Fundamental Rights. These include the
Right to Life, Right to Respect for the Dignity of Person, Right to
Personal Liberty, Right to Fair Hearing, Right to Privacy, Freedom of
Thought, Conscience and Religion, Right to Peaceful Assemble Freely and
Associate with Other Persons, Right to Free Movement, Right from
Discrimination, Right to Acquire and own Property; and Right to Judicial
Redress when any of these freedoms have been abridged.
FOI And Other Fundamental Rights
Human rights are
indivisible, inalienable and universal claims that guarantee the existence
of human being especially through those rights entrenched in a written
constitution such as we have in Nigeria. Access to information and other
human rights and good government accountability are interdependent and
co-exist in any democratic society. The right to information is linked to
other rights in a number of ways. Under international law, it has been
said that:
“Freedom of
information is a fundamental human right and …the touchstone of all the
freedoms to which the United Nations is consecrated. Freedom of
information implies the right to gather, transmit and publish news
anywhere and everywhere without fetters. As such, it is an essential
factor in any serious effort to promote the peace and progress of the
world”.
1.
FOI And Freedom Of Expression
A more critical
examination of the Nigerian Constitution will reveal a link between
freedom of information and expression. The Constitution states:
“Every person shall be entitled to
freedom of expression, including freedom to hold opinion and to
receive and impart ideas and information without interference”
(emphasis mine).
This recognition is in tune with
similar views as expressed and promoted by a number of other international
instruments and declarations. These include provisions such as:
“Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference by public
authorities and regardless of frontiers”.
And:
“Everyone shall have the right to
freedom of expression; this rights shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any
other media of his choice”.
2.
FOI And The
Right To Fair Trial
There is also an obvious connection between access to information and the
right to seek judicial redress. In many constitutions, criminal procedure
laws and other rules of court, the right to fair trial is usually
conditioned on the right of an accused to have access to police dockets
and other information held by the state. It also includes a mandatory
foreknowledge of the witnesses and other documents the prosecution
proposes to call or present for the case against the defendant(s).
3.
FOI And The
Right To Life, Good Health and Clean Environment
In July 1999, the Shell Petroleum
Development Company (SPDC), through her agent, Schlumberger Dowell,
ferried 1 million liters of suspected toxic substances in 40 tanks and
injected these into a 17,000 deep well at Location 3, Ibo Bush, Erovie
Quarters in the Isoko oil field. This activity was allegedly carried out
between 1.00 and 3.00 a.m. from 1 to 5 July 1999.
The community
was suspicious because they know Shell did not normally conduct its
operations in the dead of the night and were aware that Shell did not have
much interest in dry wells.
The community
demanded to know what sort of substance were injected into their soil and
if their safety had not been jeopardized.
A youth leader recounted that “Shell
does not want to give out information, rather they have been trying to
bluff it out.” While the community was pressing for full disclosure of
the operation, they found out that “the high powered injector and
compressor used to inject the chemicals into the well were dismantled and
taken out of the site by Shell”.
While Shell maintained that the
chemicals were harmless as supported by a government agency which claimed
it took for test the sample, independent tests conducted by scientists
from the University of Benin, University of Nigeria, Nsukka and Delta
state government showed that the chemicals were toxic and harmful.
Over time residents of the community
have become afflicted by strange illnesses including burnt feet for
stepping on the spilled substances. The productivity of plants and
economic trees has been seriously affected and many people had been forced
to relocate from the community.
Obviously, if
there were a Freedom of Information Act, the community would have had a
stronger voice to demand for information relating to the operation from
the government. They would have had an opportunity to protect their
environment and their right to life within it in the best possible health
condition.
Indeed, a link between access to
information and the right to a clean environment is also highlighted in
the Council Directive of the ECHR. This is supported even in international
law. In Guerra and others
v Italy,
the European Court of Human Rights held that it was a violation of
the applicants’ right under Article 8 of the ECHR for the Italian
government to have refused to provide information which would have allowed
an assessment of the risks of living in close proximity to a chemical
plant.
In a similar judgment in McGinly
and Egan v. United Kingdom,
the court held that the applicants had a right to certain documents
regarding nuclear testing on Christmas Island on which they were stationed
as soldiers in 1954. The applicants in the case had alleged that
withholding such documentation prevented them from analyzing the risk of
nuclear testing to their rights to family life under the convention.
Elsewhere, it has been argued that
international law has evolved to the extent that it now imposes obligation
on the government to provide information that is necessary for the
protection and promotion of the reproductive health of the people. Indeed,
the United Nations Human Rights Committee and the Inter-American
Commission have also held that governments have a positive duty to protect
the rights to life and health which include an obligation to publish
information that could assist people in protecting their right to life or
health.
4.
FOI And The Right To Acquire And Own Property
(Development Effectiveness)
The World Bank’s
new Policy on Information Disclosure acknowledges that:
....timely dissemination of
information to local groups affected by the projects and programs …,
including nongovernmental organizations, is essential for the effective
implementation and sustainability of projects. Experience has demonstrated
that consultation and sharing of information with co-financiers, partners,
and groups and individuals with relevant knowledge of development issues
helps to enhance the quality of … operations.
This recognition
by the World Bank underscores the point that access to information plays a
significant role in meeting development targets.
The Freedom of
Information Act will enable citizens and investing public to get
information on given economic issues. Such information could go a long way
in assisting them to make investment decision which could assist the
economy to grow. But non-availability of such information frustrates
potential investors. Investors need to know about the business
environment, the relative stability of such an environment, available
infrastructural facilities and other essential information. Similarly,
government will benefit a great deal as economic policies will attract
sufficient scrutiny as soon as they are made known to members of the
public.
Currently,
access to such information does not exist. And where it exists, it is
unclear and badly packaged. The on-going privatization policy of
government suffers from credibility crisis and a general lack of support
from the vast majority of members of the public largely as a result of the
problem of lack of information on its philosophy, procedures and
processes.
The widespread
failure of banks and other financial institutions in the 1990s and early
2000s is blamed on the Central Bank which hoarded the information on the
true health of those institutions thereby providing a shield for the
institutions to hoodwink their customers and shareholders.
The culture of
secrecy clearly undermined the ability of affected parties to engage in an
open and fully informed debate about fundamental economic issues and the
potential to undertake wise business decisions with the attendant
catastrophic consequences on investing members of the public, bank
customers and the entire economy.
Whereas
accessing timely and detailed information ensures greater transparency
that can play an important role in giving nations and people the
information they need to make fundamental business decisions which would,
in turn, improve the development effectiveness of institutions.
Conclusion
A
growing number of organisations and individuals are now working to cast
light on the activities of public institutions. Labour unions,
environmental organisations, faith-based groups, development agencies and
human rights organisations are working together to promote the public’s
right to know. Academics, journalists and legislators who share a common
belief in the importance of accountable and democratic public institutions
are increasingly joining their efforts. The main motivation being that
transparency and accountability, the essence of democracy, cannot be
achieved if citizens do no have a right of access to public records and
information to hold government officials accountable and be able to join
in meaning public debate of government policies and programmes.
Short of
fundamental changes, the most important way to ensure that public
institutions are more responsive to the poor, to the environment and to
broader political and social concerns is to increase openness and
transparency. We have come to take for granted the important role that an
informed citizenry has in reining in even our democratically elected
governments.
But modern
democracies have come to recognize the citizens’ basic right to know,
implemented through laws such as Freedom of Information Act. Freedom of
information in a democracy is a condition precedent for the uninterrupted
enjoyment of the human rights entrenched in the constitution in terms of
their promotion, protection, defence and development. Failure to allow for
a freedom of information regime is a huge ‘democratic deficit’ resulting
in lack of democratic legitimacy. The first step towards advancing all
tenets of human rights and the democratization of their values is,
therefore, to free the space for freedom of information which in turn
enhances government accountability and promotes broad-based participation
of citizenry.
As James
Madison once said, “A popular government, without popular information or
means of acquiring it, is but a prologue to a farce or a tragedy; or
perhaps both. Knowledge will forever govern ignorance; and a people who
mean to be their own governors must arm themselves with the power which
knowledge gives”.
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