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COMMENTS ON THE FREEDOM OF INFORMATION BILL 2004
By A. B. Mahmoud, SAN
At the Public Hearing of the Freedom of Information Bill
organized by the Senate of the Federal Republic of Nigeria
April 26, 2005
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1. Introduction
1.1 First, I will like to thank the National Assembly
and the Senate in particular for pushing ahead with the Freedom of
Information Bill by holding this public hearing. This bill constitutes an
important development in our quest for open, transparent and good
governance in this country. It is vital in our fight against corruption,
for public accountability and curtailment of waste in our public
institutions. It is also vital in further enhancing our legal regime for
the protection of individual human rights and freedoms.
1.2 Second,
I will like to commend the efforts all the groups and individuals
that have championed this bill in the last four or so years. With out
their tireless efforts, we probably would not have reached this stage
today.
1.3 It
is important, I think as many of us understand, to emphasize that FOI
laws, are not just about media rights or press freedom. Undoubtedly, both
will benefit tremendously from this law. However, FOI laws are part of an
evolving new international jurisprudence that
view Freedom of Information as a ‘fundamental human right, crucial in its
own right’ and as a ‘cornerstone of democracy and good governance’.
Nigeria cannot afford to lag behind, not only because of the imperatives
of its own development, the promotion and protection of the rights of its
citizens, but also because of its leadership role in Africa.
2. FOI Law, which model?
2.1 It is easy to appreciate, reading the bill that
much effort and thought has gone into it. I am sure the drafters of this
bill have had access to enormous amount of information available on the
subject worldwide. Many countries have passed similar laws. In Africa,
South Africa perhaps has the most comprehensive FOI Law. I find it
attractive, for in its coverage, its simplicity and the elegance of its
drafting style. More significantly, it is one of the few models that
extend its application both to public and private bodies. Our own bill
for instance applies only to ‘governmental/public institutions’ I think
this is an important issue. Why do I say so?
2.2 We are adopting and an economic model that is
increasingly shifting the sphere of economic and social responsibilities
to the private sector. Many public functions are now being performed by
private bodies. This affects ordinary citizens in many respects, not only
in the fields of individual rights, but also their communal rights, for
instance environmental impact etc. Is there any justification why a
public body should have a legal duty to provide access to information on a
particular aspect of its functions which affects individual or communal
rights which a private body performing the same functions with the same
potential impact should not be subject to? I think not. In this respect
and more, there is a lot that the South African model commends itself for
consideration.
2.3 There are several other available models which I am
sure the experts in National Assembly will be looking at as they finalise
this law. What is important is ensure that out law meets by and large the
current international best practices standards and covers the broad
principles. In July 2004, the Commonwealth Parliamentary Association in
conjunction with the World Bank Institute organized a meeting of a Study
Group on Access to Information. The meeting was hosted by the Parliament
of Ghana in Accra. It was attended by parliamentarians from various
countries of the CW including Nigeria. The conclusion of the Study Group
have been published as Recommendations for Transparent Governance in
September 2004 and are available on the web on
www.cpahq.org The broad recommendations are contained under 15
sub-headings. I think these provide a useful guide for review of a FOI
law. In additional there is a ‘A Model Freedom of Information Law’
developed jointly by ‘Article 19, Centre for Policy Alternatives,
Commonwealth Human Rights Initiative and the Human Rights Commission of
Pakistan. This can also be accessed on the web sites of any of these
organizations.
2.4 In considering a suitable model, issues of cost
implication, suitability to our environment are of course very important.
The desirability for the law must be balanced against these and other
considerations. I think the key question for me is: Is this new law
necessary? And I think this one is. The remaining issues must then be
how we craft a law that achieves the objective for which it is desired.
There can be built into the law such mechanisms that would minimize cost
both in the short run and in the long run. The law could have a longer
gestation period, while public (and hopefully private) agencies begin
preparation for its implementation. However, we should not have a law
that is so watered down its provisions that it becomes merely another
statute with no reasonable possibility for effective implementation.
3. Nigeria FOI Bill Specific Observations
3.1 Section 2(1) of the bill attempts to define the
Right of Access to Information. I think the right should be more
positively and definitively stated rather than the way the section is
drafted commencing with the words ‘Subject to….. legally, enforceable
right..’ The section also talks only of access to record. The
formulation which confers ‘right to Freedom of Information including right
to access information’ appears preferable. The Section could for instance
read. “Every citizen of Nigeria shall have the right to freedom of
information, including the right to access information held by public
bodies, subject only to the provisions of this Act.” This formulation
could be modified if the suggestion is accepted that this right should
extend to information held by private bodies, if such is required for the
protection of rights of citizens.
3.2 Sections 2 (2) and 2(3) which appear to deal with
the regulation of the access rather than the definition or the statement
of the scope of the right should be moved to a more relevant section of
the law, say Section 4 for instance.
3.3 Section 3 which carry the marginal notes
‘Information about government institutions’ appears somewhat problematic.
The general principle here I believe is that the law should impose a duty
on public bodies to routinely publish and disseminate widely a range of
key information about themselves in a manner that can be easily accessible
to the public. The idea is that if this culture is developed, overtime,
the amount of request for access to information will diminish as the
public become acquainted with the functions of those bodies and know where
to obtain information about those bodies. The problem with the Section as
presently drafted is that it attempts to give a comprehensive list of
information required to be published. It is not clear what criteria or
logic is used in the listings (a) to (p) of that section. I think the
list should be modified to make it more manageable. It should cover basic
structure, functions and duties, relevant details concerning services
offered by those bodies, address, locations telephone numbers etc where
the bodies and their branches are located, their policies, rules,
regulations, guides, manuals, contents of decisions, mechanisms or
procedures for appeals against their decisions etc. The law should then
provide for mechanism by which a supervising authority or body could
continually review and provide guidance on and extending the scope or
amount of information subject to automatic publication over time.
3.3. The requirement to publish in the Federal Gazette is
unnecessary and should be deleted. First, not all these information may be
suitable for publication in a gazette. The Government Printer will be
inundated by such publication. Secondly, this will shift the
responsibility of the publication to another authority different from the
public body on which the duty is imposed. The basic principle here is to
provide for dissemination and accessibility. The information could be
provided through hand bills, small booklets easily available or more
importantly these days, through electronic means
3.4 Section 5 attempts to set time limits within which
public bodies should respond to requests. However, the Section is vague
and fails to achieve that clearly. The 7 day period appears to apply only
to Sub-section 5 (a) that is the duty to inform the requester whether or
not access to the record will be given. The Section does not clearly
impose any time limit for access to the record to be given to the
requester.
3.5 I think I it is alright for a requester to be
informed within 7 days if an information is available with the public body
concerned and if access will be given or not. However, a longer period
should be stipulated for the actual provision of the record. This could
be as long as 21 (or 30) days depending on the nature or complexity of the
information required and the work load of the authority providing the
record.
3.6 Section 6 (1) deals with transfer of requests.
This is a good provision in its intendment. However, we could also
consider the possibility of ‘third party notice’ in addition or as
alternative to the duty of transfer. In other words, the agency or body
first confronted with the request could be required to notify a third
party (including individuals) or another public body or agency if that
person, body or agency would be affected by the disclosure. The advantage
to the requester is that he may have approached the body he did in the
first place because it is one that is most accessible to him. To require
him to follow up the request with another body hundreds of miles away may
amount to a refusal in effect.
Section 8 requires a public body refusing a request for
access to record to state the specific provision of the Act on which the
refusal was based. I think the Section should be modified to require the
authority or body to state reason or reasons for the refusal in
addition to stating the relevant section of the Act relied upon. This will
in my view require the body or authority to give more careful
consideration of the request, it affords the requester the opportunity to
evaluate (and perhaps accept) the reasons for the refusal and it makes an
appeal or judicial review easier. It will deny the refusing authority the
opportunity to at later stage to attempt to formulate other reasons for
the refusal merely to defend an unreasonable refusal.
3.7 Section 9 attempts to regulate the cost of access
to information. The general principle is that costs should not be so high
as to deter requesters. Cost recovery should in general be acceptable
except is certain cases, for instance, request for routine information or
in cases where waiver should be allowed. However, the problem with the
draft bill in Section 9 is that it introduces the concept of ‘records
requested for commercial use’ when indeed the
basic premise of the law is that a requester need not state the purpose or
reason for which the information is being requested. The section is in
conflict with this basic premise. How and who in any case should
determine if the information is requested for commercial purpose? This
confusion in the law should be removed. The criteria for cost recovery
should be retained and applied on the basis of the complexity or volume of
the record or information required.
3.8 Section 10 of the draft law makes it an offence to
willfully destroy records. While this is a good provision, perhaps the
law should be expanded to deal with the broad issues of record
management. The objective will be to develop over time an effective
record maintenance system that enhances access to information in an
efficient and timely manner. A body charged with the oversight or
implementation of the Act could over time develop a code of the management
or records and disposal of such records.
3.9 Sections 13 to 20 and 23 deal with exemptions to
the right of access. The general principles are that exemptions should be
narrow and carefully tailored. Exemptions should not be couched in vague
or terms embodying wide discretionary powers on the public body.
Exemptions should be limited to the protection of overriding public or
private interests. A public body should also have power to refuse
vexatious, unreasonable or repetitive requests. Generally exceptions cover
both the duty to provide access as well as the duty to indicate whether or
not the record or information exists. For instance, a head of public
body, say the Ministry of Defense should be able to refuse access to a
record or to refuse to indicate if the record exists, if disclosure or
access to such record will compromise national security or national
defense. The exceptions as presently couched cover only the fist aspect
and not the second.
3.10 The question needs to be considered should every
public body or head of a public body or institution be able to rely on
each and every exception?. For instance, should a local government
council Chairman be able to say that ‘I will not give access to this
information because it will be compromise national security or compromise
law enforcement investigations’? Or should such exceptions be relied upon
only where the public body relying on such exceptions discharge
responsibilities of that nature or they should do so only if they relying
on opinions of bodies statutorily charged with those responsibilities?
3.11 The implementation of this law is anchored on the
‘head of government/public institution’ who has the overall responsibility
of deciding whether to give access or to refuse. His decisions are then
to be reviewed by Court defined as State High Court or Federal High Court
(See 2ection 22). In Section 32, the Attorney General of the Federation
is then given the task of reporting, in a fairly comprehensive manner a
number of issues relating to the implementation of the law. I think there
is a need to give these careful considerations. First, should we not
have a separate administrative agency charged with responsibility of
issuance of guidance to public bodies on duty to publish, minimum
standards and best practices, record management, training, monitoring,
reporting and indeed publicizing the right to information itself? I doubt
that the office of the Attorney General is best suited for the reporting
duties conferred on him in this law. Is it the intention of the law that
the Attorney General of the Federation should report disclosure activities
of state authorities? Secondly, a separate administrative body could
ensure more efficient and timely review of the decisions of public
authorities refusing access to information. It is the decisions of that
body or agency that should be subject to judicial review.
3.12 Establishing a separate administrative body raises
the question of cost, which I understand is always high in the mind of the
National Assembly. This is of course important. But the cost
consideration should be weighed against the long term benefits that this
new legal regime will engender in minimizing waste, corruption,
mismanagement etc. What cost do you also place on the promotion and
protection of individual rights and liberties? However, such an agency
need not be brand new. We could look at the possibility of curving it out
of an existing agency or body or enhancing the functions and duties an
existing one.
4. Conclusion
4.1 Finally, there are several issues of technical drafting
nature, typographical errors etc which I believe the legal drafting
department of the National Assembly could deal with, but I will like to
conclude these remarks by emphasizing that this is a momentous initiative.
There is a vital need for this new law. If it is passed and signed into
law, Nigeria will join three other nations in Africa that have taken the
lead in new legal regime that if properly implemented will play a vital in
our economic, social and political development. I urge the National
Assembly to expedite action on its passage. I am sure it will go down in
history as one of most significant legislative achievement of this
National Assembly.
I thank you for your attention.
A.B. Mahmoud, SAN
DIKKO & MAHMOUD (Solicitors)
1 Lugard Avenue, Nassarawa, Kano
Tel: +234-642563; 315022
Fax: +234-635988; 642563
Email:
Balarabemahmoud@aol.com |
