A MEMORANDUM TO THE SENATE COMMITTEE ON INFORMATION IN RESPECT OF THE BILL ON

FREEDOM OF INFORMATION ACT (FOIA)

AT THE PUBLIC HEARING HOLDING IN SENATE HEARING ROOM 1, NATIONAL ASSEMBLY

COMPLEX, ABUJA, APRIL 26, 2005.

BY

WOMEN AID COLLECTIVE (WACOL)

ABUJA

 

ABOUT WOMEN AID COLLECTIVE (WACOL)

 

Women's Aid Collective (WACOL) was founded in November 1997 with headquarters in Enugu and branch offices in Port Harcourt, Rivers State and Abuja [FCT], Nigeria. It is registered with Corporate Affairs Commission as a charitable Organization (RC388132). WACOL has an Observer status with the Africa Commission on Human and People's Rights.

 

WACOL exists to promote human rights of women and young people, increase legal protection and fight for better choices for abused women and children, facilitate flow of information and experience between organizations and develop appropriate IEC that will be used in advocacy for human rights of women, young people and the populace.

 

We assist in the educational, social, economic and political development of women and young people through a wide range of services: training, research, advocacy, shelter, free legal and financial aid, and intra-familial conflict resolution, information and library services. Our vision is a society free from violence where human rights of all in particular women and young people are recognized in law and in practice.

 

WACOL has excelled in its chosen area of work: Gender, Human Rights, Health, Good Governance and Conflict Resolution.

 

WACOL believes in the value of networking in the implementation of our goals, consequently we are quick to purse any opportunities available for working with similarly focused organizations from within and outside Nigeria. We belong to but not limited to: the Network For The Promotion Of Women's Rights In Islamic Societies Of West Africa [NPWRIS], Citizens Forum for constitutional Reform [CFCR], Gender and Constitutional Reform Network [GECORN]-made up of 59 organizations that have jointly articulated a position paper on the review of the 1999 constitution of Nigeria, National Coalition on Violence Against Women, Partners for Peace Advocacy and Good Governance [PPAGG], Enugu State Coalition of Civil Societies on HIV and AIDS [ESCCHA], Civil Societies Consultative Group on HIV/AIDS in Nigeria [ CISCGAN], South East Women's Caucus, Electoral Reform Network[ERN], Legislative Advocacy Coalition on Violence Against Women[LACVAW], Transition Monitoring Group[TMG],Widows Rights Coalition [WRC].

 

MEMORANDUM TO THE SENATE COMMITTEE ON INFORMATION IN RESPECT OF THE Bill ON FREEDOM OF INFORMATION ACT (FOIA) AT THE PUBLIC HEARING IN SENATE HEARING ROOM 1. NATIONAL ASSEMBLY COMPLEX, ABUJA HOLDING ON TUESDAY, 26 APRIL 2005.

 

INTRODUCTION:

 

The Freedom of Information Act (FOIA) from all intents and purposes is coming on stream rather late into our democratic life, judging from the essential nature of its purpose, however it could not have come at a better time than now when government is neck-deep in its reform processes. It is particularly timely, as it would necessarily lend credence to myriads of actions and reactions both to the individual and the public alike who would want to assist meaningfully in the war against corruption.

 

The renewed struggle against widespread corruption in our national life is an initiative that requires patriotic and independent contributions by all and sundry irrespective of status or position. We are therefore using this same medium to congratulate the National Assembly on their renewed vigor at stamping out this albatross in our midst. We want to also commend the entire House of Assembly for their openness and enviable conduct in approaching and maturely resolving the leadership crises that recently rocked the upper chamber. We particularly commend the Senate Committee on Information for the openness with which they have so far approached sensitive public issues such as the very Bill before us, through their robust public hearings. We reckon also that the task before the House of Assembly is indeed herculean even as we believe strongly that they are not insurmountable.

 

We therefore here again reiterate WACOL's support as a Human Rights Organization with almost a decade-long involvement in fighting for and protecting the rights and dignity of women and young people in our society. Our vision has always been a democratic society where human rights of all are recognized in law and in practice.

 

The Information Act as a sine qua non for our democracy

It was an American consumer advocate named, Ralf Nader who rightly said that information is the currency of democracy. Our fledgling democracy requires appropriate structures in place as well as the commitment of all stakeholders to achieve the much-needed sustainability.

 

The Freedom of Information Act (FOIA) of the National Assembly generally and normally should provide that any person has a right, enforceable in court, to obtain access to government agency information, except to the extent that such information (or portions of them) is protected from public disclosure by some exemptions or special law enforcement exclusions.

 

If this bill sails through, it would have succeeded in providing for an effective statutory right of public access to sundry information from any and every level or agency of government. The principles of government openness and accountability underlying the FOIA, however, are inherent in the democratic ideal, In fact the main object and basic purpose of the FOIA is to ensure an informed and vibrant citizenry which is vital to the functioning of a democratic society such as ours, and among other things to closely check corruption, hold government functionaries who are called to serve the people, to account. There is no doubt that we have all suffered decades of alienation, non-accountability and non-transparency by government and its agencies. Our imposed indifference to the business of governance has remained our collective undoing. It is indeed instructive that the non-availability of a freedom of information Act has no doubt further impeded on patriotism and handicapped willing informants and therefore worsened the case.

 

We believe that achieving an informed citizenry is a main thrust of the Act, yet we appreciate that realizing such a breakthrough would almost always counterpoise against other vital societal interests. Society's strong interest in an open government can conflict with other important interests of the general public- such as the public's interest in the effective and efficient operations of government business; in the prudent governmental use of limited fiscal resources; and in the preservation of the confidentiality of sensitive personal, commercial, and governmental information. Though' tensions are necessary and common characteristics of an ideal democracy like Nigeria's, however, resolving such tensions depend largely in the ability of the power players to provide workable scheme that encompasses, balances, and appropriately protects all interests, while placing premium on the most responsible disclosure possible. WACOL contends that it is the wisdom in accommodating these strongly countervailing public concerns, with disclosure as the animating objective that this all-important Bill on Freedom of Information Act (FOIA) seeks to accomplish.

 

We also appreciate the fact that this Bill evolved after long hours and days of debates among members of the Senate and the committees in particular, and so with this ample opportunity to make our inputs, we are complimenting your effort and as well giving our tacit support to this Act for it's vitality and necessity in the polity.

 

Under the thrust and structure of this Act, it must be re-emphasized that virtually every information possessed by any and every government agency must be made available to the public in one form or the other, unless it is specifically exempted from disclosure or specifically excluded from the Act's coverage in the first place. Exemptions to the Acts would only probably provide the basis for nondisclosure, which are however generally discretionary and not mandatory in nature. Dissatisfied record or information requests are given a relatively speedy remedy in developed democracies such as the USA, where Court Judges determine the propriety of agency withholding de vono, and agencies bear the burden of proof in defending their nondisclosure actions.

 

The Press and Freedom of Information Act (FOIA)

A pluralistic society, which Nigeria is aspiring to become, can only be achieved and sustained with the successful passing and implementation of the freedom of information bill. This is because a democratic society is founded on a number of principles, which includes; the accountability of elected representatives and civil servants to the people. Ideally, a host of mechanisms should guarantee this sought phenomenon, but even the best of systems may be abused. Experiences show that when a wrongdoing does take place, freedom of expression among those best placed to expose it and ensure that justice is done is jeopardize.

 

Indeed, because of the great public interest in the conduct of government most especially as it affects corrupt practices and misuse of public offices and positions, the importance of "watch dog" role of the media is often seriously felt. Ideally, the media in Nigeria and elsewhere should be the peoples last hope of investigating; sifting, uprooting and or alerting the populace on sensitive scenarios bothering on personal enrichments and other corrupt tendencies.

 

Debates on public issues should be uninhibited, robust, and wide open, and that sometimes too, it may well degenerate into vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. Journalists cannot expect to be walled apart from the community in which they belong, neither can they serve two masters with opposing. interests, the role of the media in a democracy rightly may have earned them the popular "fourth estate of the realm", in which case they have a duty to serve without fear or favor. A Newspaper has the right to be captious, or partisan, or untruthful or bigoted or whatever else its conscience allows to be. And although generally newspapers are unanswerable to the laws of libel, within a very large compass they continue to set their own responsibilities. The underlying idea is that, from the clash of options and ideas presented by a free press, ultimately something resembling truth and almost always the truth emerges. The press and governments are understandably, natural adversaries with different functions and each, must respect the role of the other for democracy to be seen to be thriving.

 

FREEDOM OF INFORMATION ENJOYS GLOBAL/UN PROTECTION

Freedom of expression is a deeply established global value especially in democratic cultures, although democracies vary in practice, adopting the model at all means the government should be held responsible if democracy is subverted or thwarted. Nigeria is to all intents and purposes a democratic State and should be so recognized; hence all elements characters of a democracy should apply including freedom of information to checkmate erring and corrupt officials. The United Nations believes that Seizure of the press for publishing or seeking to publish the unknown but bitter truth for instance is forbidden in a typical democratic culture, where sovereignty derives from the people. Freedom of Information is imperative and it includes the public's right to know what the government is doing on its behalf and to participate in decision-making processes. The right to information and particularly, the right of access to information held by public authorities has attracted great deal of attention even in recent time.

 

The UN has over and again reiterated that the significance of freedom of information is fundamental and beyond question. In its very first session in 1946, the UN General Assembly adopted Resolution 59(1) stating, "Freedom of Information is a fundamental human right and... the touchstone of all the freedoms to which the United Nations is consecrated". Abid Hussain, UN Special Rapporteur on Freedom of Opinion and Expression, elaborated on this in his 1995 Report to the UN Commission on Human Rights as follows;

 

"Freedom will be bereft of all effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked".

 

RECOMMENDATIONS FOR THE BILL ON FREEDOM OF INFORMATION ACT

• Freedom of Information legislation should be guided by the principle of maximum disclosure

• Public bodies should be under an obligation to publish key information

• Public bodies must actively promote open government

• Public agencies should be encouraged to adopt internal codes on access and openness.

• Exceptions should be clearly and narrowly drawn and subject to strict "harm" and "public" interest tests.

• Restrictions whose aim is to protect governments from embarrassment or the exposure of wrongdoing can never be justified.

• A complete list of the legitimate aims, which may justify nondisclosure, should be provided in the law. 

• Refusals must meet a substantial harm test. 

• Requests for Information should be processed rapidly and fairly and an independent review of any refusals should be available.

• The law should provide for strict time limits for the processing of requests and require that any refusals be accompanied substantive written reasons.

• Wherever practical, provision should be made for an internal appeal to a designated higher authority within a public authority that can review the original decision.

• Individuals should not be deterred from making requests for information by excessive costs. Meetings of public agencies should be open to the public.

• Freedom of information legislation should therefore establish a presumption that all meetings of governing bodies are open to the public.