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ISLAMIC PERSPECTIVE AND PRACTICES ON
FREEDOM OF INFORMATION AND FREE ACCESS
TO PUBLIC RECORDS
A MEMORANDUM ON THE FREEDOM OF INFORMATION BILL, 2005
PRESENTED AND SUBMITTED TO THE SENATE COMMITTEE ON INFORMATION
BY'
MUSTAPHA HUSSAIN ISMAIL. PHD
DEPARTMENT OF ARABIC
BAYERO UNIVERSITY, KANO P.M.B. 3011
KANO, NIGERIA
DIRECTOR
CENTER FOR HUMAN RIGHTS IN ISLAM, KANO
TEL: 064310524,08037036172
E- MAl: Mustapha_ismailyahoo.com
TUESDAY 26TH APRIL, 2005
ISLAMIC PERSPECTIVE AND PRACTICES ON FREEDOM OF
INFORMATION AND FREE ACCESS TO PUBLIC RECORDS
In the Name of Allah, Most Gracious, Most Merciful
Glory and praise be to Almighty Allah SWT to
whom there is nothing hidden or secret and from whom information can never
be withheld. He said of Himself:
Did not I tell you that I know the secret of the
heavens and the earth and I know what you reveal and what you conceal
(Q2:33)
Allah's Peace and mercy be upon His Holy Messenger Mohammed
bin Abdullah S.A.W. who earnestly and truthfully conveyed Allah's message
to the humanity, in its totality without withholding any of its aspect.
Introduction
Justice, and the rule of law, honesty and accountability,
democracy and good governance, transparency in governance, human rights,
equality, freedom of conscience and freedom of information and free access
to public records____: all these are universal principles evolved to guide
humanity in conducting its social affairs in this world so as to live in
peace and harmony, security, tranquility free and just societies. These
social principles are not only known to Islam but Islam evolved them and
sought to implement them for the first time in the history of humanity.
That was since its inception at the beginning of the first decade of the
seventh century AD, in a world divided between the Roman and Persian
empires and characterised by autocracy and despotism in governance. A
cursory perusal of the two main sources of Shariah and the
teachings of Islam, i.e. the Holy Quran and the traditions of the Prophet
(SAW) will confirm that.
Secondly, Islam evolved in order to provide panacea and
solution to the religious, social, political, economic and cultural
problems, and to advance feasible blueprint on these aspects of human
life, including freedom of information and access to public records.
Democracy has a number of integral components such as
justice and the rule of law, equality, freedom of conscience and
expression, honesty and accountability, transparency and freedom of
information and access to public records. Of all these principles or
components of democracy and good governance, freedom of information and
access to public records stands to be one of the most vital components.
Without its implementation, most other components of democracy and good
governance cannot be attained.
The concept of transparency
Freedom of information and free access to public records
are an integral components of transparency in governance, as transparency
itself is to democracy. But what is transparency in governance?
Linguistically, the word transparency, as illustrated by the entries of
almost all the major authoritative English dictionaries, signifies a state
of-being able to be seen through. When said of things and human beings or
their behavior, transparency connotes being clear and easy to understand,
accessible, simple, frank, open and candid. This definition of the term,
though linguistic as it is, is of importance for it assists in
understanding the concept socio-politically. Yes, language explains social
reality. Thus, politically speaking, transparency in governance is a
political setting in which the government is capable of being seen through
by the general public, clear, open, frank, simple and candid to the people
that place it in the position of power. In addition to that, being candid
means that the government must also be honest, fair and impartial, not
only in its implementation of policies but equally also in the conception
of those policies. The most effective way of showing honesty and
accountability is to make a provision in law for the freedom of
information and free access to public records. A transparent government
therefore, is one that does not hide its thoughts, intentions, ideas and
financial records from the people that place it in the position of power.
Under the principle of transparency in governance, members
of the public collectively or individually, must, as of right be informed
of not only about what they have in the treasury, how it is earned and how
it is spent. They even have the right to question any government officials
no matter how highly placed about it. And one way of achieving that is by
having a direct and free access to the records of the government finances.
During the period of Umar R.A. and subsequent
Islamic governments under Islamic state, public financial records of
various ministries known as Dawaween including the records of the
ministry of finance were freely accessible and open to the public.
Government functionaries involved in financial mismanagement and found
guilty were sanctioned, no matter how highly placed they were, including
governors. In addition to that, government officials including those from
Dewanil-Alal
In Islam or in Shariah, to be specific,
freedom of information and access to public records pertaining to any
governmental institution or ministry, is a God-given right of the
citizens. Under this principles citizens in Islamic law are free to
inquire and obtain access to the public records in order to be informed on
any aspect of governance. The government functionaries or public
office-holders are duty bound to render the public records accessible to
the citizens, men and women a like.
It would even be more sensible, more democratic and more
transparent if public office-holders and those in governance would make it
obligatory on themselves to disclose information to the general public and
make the public records freely accessible before the general public even
demand that "For the best of the eye-witnesses is the one that gives his
evidence before he is asked of it."
Withholding information from members of the public, or
denial of the access to the public records, by the public office holders
or government agents amounts to what is refereed to in Islamic law, as
KitmanushShahadah concealment of evidence, which is a sinful
act, Allah stipulates in the Holy Qur'an.
The witnesses should not refuse when they are called
upon (for evidence) (Q2:281)
….conceal not evidence, for whoever conceals it, his
heart is tainted with sin. (Q2:282)
Indeed, there is no clearer evidence on how a government is
run or how the public affairs are conducted than the public records.
In Islam, withholding information on public records can
also be viewed as kitmanul-llm, concealment of knowledge. It
is an unlawful act. So many traditions of the Prophet SAW. stipulate its
prohibition. In one of them the Prophet S.A.W says;
Whoever is asked about a piece of knowledge he knows
but conceals it, he will be bridled with a bridle of fire, on the day of
judgement.
In another tradition the Prophet S.A.W says;
Whoever conceals knowledge, with which Allah benefits
[others] in the affairs of people, the affairs of religion, Allah will
bridle him, on the day of judgement, with a bridle of fire
Freedom of information and free access to public
records as a means for ascertaining accountability
Accountability is a vital component of good governance in
Islam and cannot be best achieved and maintained except through the
application of the principle of freedom of information and free access to
public records. It is through the public records that how public funds are
spent can be verified, ascertained and scrutinized by the members of the
public. In one of His famous traditions Prophet Muhammad S.A.W.
stipulated as reported by Bukhari and Muslim:
All of you are shepherds and all of you are
responsible for their herds: the leader is a shepherd and is responsible
for his subjects. A man is a shepherd to his family and responsible for
his herd.A woman is a shepherdess in the house of her husband and is
responsible for her herd. A servant is a shepherd to the wealth of his
master and is responsible for his herd; Therefore, all of you are
shepherds and all of you are responsible your herds.
The leaders are indeed accountable first for the electorate
that elevated, them to the level of governance and then accountable to the
Almighty Allah SWT on the day of judgement, the Day in which
wealth, children or power are useless, except those who came to Allah with
a clean heart.
Freedom of information and access to public records
as a means of ensuring that the right to govern, given in trust to those
in governance is kept and exercised in trust.
Islamically speaking, government functionaries and public
office-holders are duty bound to keep the citizenry fully and
well-informed on the running of the government by disclosing to the
general public information and providing free access to public records
whenever the need arises.
Thus, public officers who discharge this duty and
obligation must not be punished, rather they deserve commendation from the
general public and rewards from Allah S.W.T w In other words,
in Islamic law public office holders must be accessible and disclose
information to the general public as the need be. In other words, under
Shariah. Secrecy in governance has no place. Therefore the law
that bars office holders from disclosing information to the public must be
abandoned.
Under the Islamic principle of freedom of information and
free access to public record, which is the basis and safeguard to the
transparency in governance, those in the corridors of power owe the
general public a duty of providing them with access to the public records,
making information more freely available to them, provision and projection
of the public records and information about them to the extent consistent
with the public interest, protection of the serving public officers, from
any adverse consequences that may be occasioned by passing certain kinds
of official information without authorization, and finally establishment
of procedures for the realization of those purposes.
They owe members of the public this sacred duty because
under Islamic laws otherwise known as Shariah, the people in government
are trustees acting on behalf of the members of the public who place them
in that position, under a social contract executed through votes and
electoral process. The wealth they hold in trust is not theirs. It is the
wealth of the members of the public. They are like trustees to the people
who in entrusted them. A trustee has no right to withhold information from
the beneficiaries or the Settlors whatsoever or else his -contract is
repudiated. Leadership or governance in Islam is a trust entrusted to
those in power for the benefit of the general public, who are the
beneficiaries. The best and sure way to ascertain that the trustees carry
out the responsibility honestly is through the principle of freedom of
information and free access to public records. Allah S.W.T. stipulates in
Holy Qur'an that the trustees should give back the entrusted things to
those who entrusted them; He says:
Allah does command you to render back trusts, to those to whom they are
due, and when you judge between people that you judge with justice, verily
how excellent is the teaching which He gives you! for Allah is He who
hears and sees all things. (Q4:58)
Ibn-Jarir at- Tabri offers a correct interpretation of the verse when he
says:
Therefore, the interpretation of the verse is then,
if the issue is as we described it: verily Allah commands you 0 the
collection of Muslim leaders, to give back what your subjects entrusted to
you such as their Fai, their rights, their wealth, their alms, as Allah
enjoys you to render back all of such to whom it is due, after it becomes
under your control. Never cheat its owners or take anything of it, do not
place anything of it anywhere other than its place. Do not take anything
from it except from whom Allah enjoins you to take, before it becomes
under your control. And He enjoins you that when you adjudicate between
your subjects, to adjudicate with justice and fairness, and that is
Allah's injunction which He sent down in His book and explained it through
the tongue of His Messenger. Never transgress that or else you become
oppressors to them....
The point to make here is that the best and effective
method through which to ascertain whether the trustees shoulder the
responsibility with justice and fairness is through freedom of information
and free access to public records, and the freedom of the public
office-holders to disclose information and be accessible for information
without permission or adverse consequences or sanctions.
Another related point to make is that it is not logical to
punish the trustees for disclosing information to the persons who entrust
them. Nor is it sensible just for the trustees to conceal or withhold any
information on the trust from those who entrust then.
Freedom of information and access to public records
as a means of fighting corruption.
Islam abhores corruption in which ever form. the Qur'an and
the traditions of the Prophet Muhammad S.A.W wage an all-out
war against any form of corruption and at any level. In al-a 'araf,
Allah SWT says;
Do not engage in corrupt practices in the land after
it has been set in order:
Elsewhere Allah SWT says;
Give just measure and cause no loss (to others by
fraud) (Q26:181)
And weigh with scales, true and upright. (Q26:J 82)
and withhold not things justly due to men, nor do evil in the land;
engaging in corruption. (026:183).
Islamic perspective on transparency in governance and
its advantages
There are so many advantages to be derived from the
provision of the freedom of information and access to public records.
First, this provision makes the public office-holders and those in
governance cautious in the discharge of their responsibility for they
would be aware that they would easily be exposed whenever they engage in
corrupt practices. Secondly, freedom of information and free access to
public records allows the general public the opportunity to contribute
their quota in the decision making as well as in the implementation of
policies. Thirdly, it also makes the citizens feel confident in the
government as they are fully informed of how their affairs are run.
Fourthly, the bill will pave the way to the eradication or reduction of
corruption and corrupt practices in governance, for there should be no
more secrecy in governance. Fifthly, it will instill in the government
functionaries the sense of honesty and accountability. Attainment of all
these leads to the attainment of the much-needed viable democracy and good
governance in our great Nigeria. Finally, freedom of information and free
access to public records creates harmony and sense of trust between the
government and the governed. No harmony is attainable in a situation
whereby the government bars its citizens or denies them free access to
information and public records.
Sanctions for the breach of the principle of freedom
of information and access to public records in Islamic law
Civil disobedience by the members of the public is legally
allowed in the event of the breach of the principle of the freedom of
information and free access to public records or even resignation of the
government. A case in point is that of Umar bin al-Khattb R A.
the second guided Caliph of the Prophet S.A.W., when
single-handedly decided a change in policy with regards to the amount of
dowry stipulate~ in the Holy Qur'an. Immediately he announced it in a
public address, a woman stood up and challenged him, seeking explanation
on that. He had to admit that he erred and the woman was right. In other
words, she sought explanation which he failed to furnish and had to admit
error.
Another precedent is also that of Umar R.A In
this case, Umar R.A. was billed to address the public on
certain issues. In the course of delivering his speech, he urged the
public to listen and obey the law. A man from the audience, thinking that
Umar had enriched himself at the expense of the public, stood up and said
to him, "You owe no obedience to us until you explain how you came about
the cloth you are in now while ours are not sufficient for us." The Caliph
had to call his son to explain to the public how he earned the cloth.
It also happened that a governor appointed by the Prophet
Mohammed S.A.W. at the end of a financial year came to the
Prophet SAW to give account of the revenue he collected. In the process,
he handed down some amount of money to the public treasury and kept with
him some amount of the money, claiming that it was given to him as a gift
by some members of the public. The Prophet S.A.W. was so upset
to the extent that He said in annoyance: "Why cannot one of you stay in
his father's and mother's house to see if members of the public can give
him that money".
Conclusion
By approving the Freedom of Information Bill and signing it
into law, the Distinguished Senators, Honourable Members of the House of
Representatives and the Executive arm of government are discharging their
sacred duty and making history in the process of democratization in this
country. By performing this historic duty, you are laying a solid
foundation for genuine democracy and good governance guided by the
principle of transparency and free access to information on public
records. Providing information and access to the public is an important
aspect of transparency in governance. The best way of achieving it is to
pass a law establishing and safeguarding it.
I pray to the Almighty Allah SWT in His infinite
mercy and virtues, to guide your steps in signing the bill into law and
also pray to Allah SWT to make it a basis for peaceful
co-existence between the different ethnic and religious groups in the
country, a system of governance in which transparency in governance shall
be the guiding principle, and a socio-political set-up in which freedom
of conscience and expression, equality, peace and security shall be the
order of the day. Allah is very close, hearing, responsive and capable of
doing that and more.
By passing the information Bill 2005, into law, the senate
members are making the most progressive history. A history in which their
names are inscribed in the register of that history. What you are
embarking upon is one of the most effective means of fighting corruption
in government circles. It is enough for you that Allah in His wisdom has
chosen you to perform this historic function. Thank Him for the
opportunity He has given you, by seeing that the Bill is passed without
mutilation and changes that will negative it's essence.
God bless you all.
Thank you. |
