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The Chairman
Senate Committee on Information
National Assembly Three Arms Zone - Abuja.
Re: FREEDOM OF INFORMATION BILL
We are consultants to the MTN and have the
instruction of the company to forward to you its position on the Freedom
of Information Bill with a view to seeking amendments to some sections of
the Bill in order to bring it into conformity with international best
practice.
We are aware that the Bill, which has been passed by
the House, has gone through a second reading in the Senate and referred to
your Committee. Your Committee is expected to report within three weeks.
We believe that a consideration of the input of our client (MTN) at this
time will go further to make the Bill live up to international standards.
MTN seeks amendments in four areas namely definition of
Public/Government institutions, right to access, notice where items to
records are requested and the economic interest of the Federal Government
of Nigeria.
Definition Of Public/Government Institutions
Section 2 of the Bill includes "private bodies carrying out
public functions" in its definitions. This definition therefore, considers
private companies offering public services as Public/Government
institutions, which is not what they are. If retained as it is, private
companies will be affected by the provisions of the freedom of information
Bill which is not the goal of the concept of freedom of information from
the context of international best practices. Freedom of information Bill
is restricted to government and its agencies in order to allow citizens
scrutinize their officials and make them more responsive and responsible
to the citizens. Private companies are not included as they have
regulatory agencies that set and enforce standards for their operations.
Kindly see pages 1 and 2 in the attached for the
definitions of public/government institutions in the freedom of
information Act in the U.K, South Africa and U.S which exclude private
companies not publicly funded or controlled. From the foregoing, it is our
prayer that the last sentence in the paragraph defining public/ government
institutions as "private bodies carrying out public functions" be
substituted with "organizations carrying out public functions with or on
behalf of government, and or companies and organizations in which
government has investment".
Right To Access
Sec. 3 of the House Bill before the Senate gives even
aliens the legal right to seek access to any record under the control of
government or public institutions in Nigeria. MTN's position is that only
citizens of Nigeria should be so empowered to seek and be provided such
information.
Notice Where Access To Records Are Requested
The House bill states that where a record is
requested under this Act, the head of government and/or public institution
to which the request is made shall within 7 days after the request is
received, give written notice to the person making the request as to
whether or not access to the records or part thereof will be given, and if
access to the information will be given, give the person who made the
request access to the record or part thereof. MTN considers this provision
ambiguous as it contradicts Sec. 3 which accords a person seeking
information the right to seek legal and judicial enforcement of such
right.
Economic Interest Of The Federal Government Of
Nigeria
Section 16 of the House bill states that the head of
government or public institution may refuse to disclose any record
requested under this Act that contains the following:
Ø
Trade secret or technical information
that belongs to the FGN, states or Local Government that has substantial
economic value.
Ø
Information, the disclosure of which
could reasonably be expected to prejudice the competitive position of a
government and or public organization.
Ø
Information that may materially injure
the financial interest of the FGN, States or Local Government.
Against this backdrop, kindly consider MTN's views on the
points above.
1. While MTN appreciates protection of such
information, it is not clear what trade secrets or commercial information
(with substantial economic value), government seeks to protect against the
background of the current privatization policy, which. intends to remove
government from business.
2. In line with (1) above, this does not appear to
be in consonance with government investment drive.
3. The Assembly needs to address what
"competitive" position government/public institution seeks to protect when
they are not in business. MTN assumes that information requests should be
mainly from regulatory bodies.
We wish to state that MTN especially commends the inclusion
of Sections 9, 23, 29 among others in the House Bill, but implores that
the amendments being sought be included to further enhance the Bill to
meet international standards.
We shall be greatly delighted if you wi1l be kind to read
through the original text of MTN's comments on the Bill, which includes a
write-up on freedom of information from an international perspective which
captures sufficiently the position of the organization on the Bill.
We seek your indulgence to accommodate our views and
perspective in your recommendations and in the Bill before it is finally
passed in the interest of the private sector in Nigeria, which is the
engine room of growth now all over the world and the need to preserve the
national integrity and sovereignty of our fatherland.
We have implicit confidence in your ability to do what is
right always and to uphold and defend the spirit and the letter of the
Constitution of the Federal Republic of Nigeria.
Attached are the original documents from MTN.
Kindly accept the assurances of our highest regards.
Yours faithfully
For: HADINACONSULTING LTD.
Idris Y. Yakubu
Executive Chairman
COMMENTS OF MTN NIGERIA COMMUNICATIONS
LIMITED ON THE PROPOSED FREEDOM OF INFORMATION BILL
Freedom of Information from an International perspective
The right to freedom of information is an important aspect
of the international guarantee of freedom of expression which includes the
right to seek and receive as well as to impart information. The right is
proclaimed in Article 19 of the Universal Declaration of Human Rights and
protected in International human rights treaties including the
International Covenant on Civil and Political Rights (ICCPR) and the
African Charter on Human and People's Rights. Article 19 of the ICCPR is
in the following terms:
1. Everyone shall have the right to hold opinions
without interference.
2. Everyone shall have the right to freedom of
expression; this right 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.
In recent years, the UN Special Rapporteur on Freedom of
Opinion and Expression has regularly stressed the overriding importance of
freedom of information. Recognizing the importance of freedom of
information, a large number of States have internalized this into local
legislation. Countries that have passed Freedom of Information Bills
include Australia, Canada, Hong Kong, Germany, Ireland, France,
Netherlands, Republic of South Africa, Russia, United Kingdom and the
United States.
Thrust of the Bill
This Freedom of Information Bill is intended to make public
records and information more freely available, provide for Public access
to public records and information, protect public records and information
to the extent consistent with public interest, protect personal privacy,
protect serving public officers from adverse consequences from disclosing
certain kinds of official information without authorisation and establish
procedures for the achievement of those objectives. The Bill seeks to
radically transform the Official Information gathering process in Nigeria
by empowering persons, whether or not a citizen of Nigeria, to have the
legal enforceable right to be granted access to any records under the
control of Government or public institution.
MTN believes that input from private and public
stakeholders is particularly important even at this stage of the process
in view of the far-reaching implications of this Bill in furtherance of
the principles of transparency and good governance. We have therefore
reviewed this Bill against International benchmarks.
Definition of Public /Government Institutions
Public/Government Institution is defined as "any
legislative, executive, judicial, administrative or advisory body of the
Federal, State and Local Governments, Boards, Bureaux, Committees or
Commissions of the State, and any subsidiary body of these public bodies
including but not limited to Committees and sub-Committees which are
supported in whole or in part by tax revenue or which expends tax revenue
and private bodies carrying out public functions".
We have noted that the definition extends to private bodies
carrying out public functions. MTN's concerns are as follows:
1. The objective and thrust of this Bill is to
enhance openness and transparency in the conduct of Government business by
providing access to information. Therefore, an extension of this
definition to cover private bodies will be contrary to the objectives of
this Bill.
2. Private companies such as MTN have a
constitutional right to protect information which is inherent to
achievement of its business objectives especially in a competitive
environment. Information which is considered necessary for effective
regulation of their activities are submitted to the NCC within the terms
of the Digital mobile licence. Thus, private companies are already
subjected to necessary controls within the context of the existing
regulatory regime in 'their respective operating environments.
3. It is difficult to define what constitutes
"public functions" which are carried out to justify the inclusion of
private companies within this definition of Public/Governmental
Institutions. This could encompass any commercial service in its entirety
which applies to the whole of the private sector. Such far-reaching
omnibus powers would detract from the essence and purport of this
legislation.
We have reviewed several similar legislations especially
from developing countries with results as follows:
1. The United Kingdom: S 3(1) of the U. K
Act defines Public Authorities to include all Government departments, the
various legislative bodies, the armed forces etc. The Act also provides
that, the Secretary of state may add to list of bodies on the condition
that they are designated as "public bodies which exercise functions of a
public nature".
2. South Africa: The S.A Act defines public
body as a department of state or administration in the National,
provincial or municipal spheres and any other institution exercising a
power in terms of the constitution or a provisional constitution or
exercising a public power or performing a public function in terms of any
legislation. This definition does not include private bodies which are
substantially publicly funded in the absence of legislation.
3. United States: The U.S version of the Act
used the term 'Agency' to refer to public authorities under an obligation
to disclose. This includes any executive department, military department,
Government Corporation, or other establishment in the executive branch of
Government, or any independent regulatory agency. Therefore the Act does
not cover private bodies/organisations.
4. India: The definition of "Public
Authority" under the Freedom of Information Bill extends to "any body
controlled or substantially financed by funds provided directly or
indirectly by the appropriate Government". The Bill expressly excludes
private bodies.
We note that some there are some strategic commercial
entities partly owned/owned or managed by Governments which may still be
covered under National Freedom of Information Bills especially during the
transition process from a monopoly entity to a commercialized/privatized
entity. In these cases, some level of public scrutiny may be justified
within the context of this Bill. The Indian Freedom of Information Bill
and the South African Open Democracy Bill recognize specific situations
where this is permissible is in respect of companies where Government has
a majority or substantial financial stake, companies where at least 50% of
expenditure/capital needs are met from the Government Treasury or
companies which supply products or services under monopolistic rights
conferred on it by legislation. We therefore propose that the House
Committee may consider these public companies for inclusion while
excluding private companies from the definition of Public/Government
Institutions.
Economic Interest of the Federal Government of Nigeria
The Bill in S 16 states that the Head of government or
public institution may refuse to disclose any record requested under this
Act that contains the following:
1. Trade secret or financial, commercial,
scientific or technical information that belongs to the FGN, State or
Local Government that has substantial economic value
2. Information, the disclosure of which could
reasonably be expected to prejudice the competitive position of a
government and or public organisation.
3. Information that may materially injure the
financial interest of the FGN, States or Local Government.
While MTN appreciates the need to protect commercially
sensitive information which may reside in a company in which Government
has substantial interest, we would caution that this would be viewed
within the context of over-riding public interest. In some cases, these
entities are not just commercial entities but are indeed a lifeblood to
other commercial enterprises for example public utilities which justifies
a higher standard of access to public information. We must also be mindful
of the fact that this broad provision may provide a basis for denial of
information requests. We would therefore advise that these exceptions
should also be subject to the public interest test as specified in Section
17(3) which stipulates that the disclosure of information may in some
cases clearly outweigh the position of the Government or Public entity.
Judicial Review
The Bill is explicit that any person who has been refused
access to a record requested under this Act or part thereof may apply to
court for a review of the matter within thirty days after the head of
government or institution might have refused or is deemed to have refused
the request or within such time as the court may either before or after
the expiration of those thirty days fix or allow. The Bill also allows the
Court to compel the government or institution to disclose the record in
question or part thereof to the person who requested for access to the
record. These are commendable provisions which further entrench democratic
principles and the rule of law in Nigeria.
Conclusion
The need for the enactment of a legislation focused
primarily on providing for the right of access to public
records/information in Nigeria can be justified on several fronts.
1. It is central to our collective desire as a
nation to evolve a proper and active culture of participatory democracy.
The right of access to information would provide everyone in Nigeria with
the unique opportunity of adequately informing themselves about the
workings of Government and by so doing raise the level of enlightened
public discourse on National issues.
2. This would help to open up the Government/Public
Institutions to public scrutiny. Even in Africa, Governments are
increasing the standards of openness and transparency in the conduct of
governance. Within the framework of the NEPAD, Governments have
voluntarily submitted to the African peer review mechanism where their
activities will be benchmarked against acceptable standards in the
discharge of responsibilities to the citizenry. The Freedom of Information
Bill will instill even higher standards of openness and transparency.
3. Passage of such a law would ensure the creation
of a level playing field for all players in different segments of the
Nigerian economy and would thereby attract increased inflow of both new
direct foreign and local investments into the country.
4. Another important benefit derivable from the
enactment of an access to information law in Nigeria is the significant
savings that would be made by the Nation from the ability of the
legislation to assist with the current crusade to curb corrupt practices
in the public service, through subjecting all government transactions to
public scrutiny. It would also help in the efficient allocation of scarce
national resources to achieve maximum returns, through the ability of the
people to, using the information available at their disposal, put
government officials to task over the process of prioritizing resource
allocation for national development.
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