Lawyers Establish Freedom of Information Legal Response Network

Chioma Nwaodike, Legal Officer, Media Right Agenda
Chioma Nwaodike, Legal Officer, Media Right Agenda

Participating lawyers in a two-day Sensitization/Training Workshop  on “Supporting the Media Through Litigation” have agreed to establish a Freedom of Information (FOI) Legal Response Network as a platform for their collaborative efforts to provide legal and litigation assistance to journalists, media organizations and other deserving members of the public, as well as to share ideas and coordinate activities aimed at ensuring the  implementation of the Act.

They resolved to work individually and, where necessary, collaboratively across the country, to take up cases pro bono where the access to information or freedom of expression rights of members of the public are violated or threatened.

These formed parts of the resolutions adopted on March 6, 2019 at the workshop in Kaduna which was attended by 44 participants, including 42 legal practitioners in active legal practice from different states across Nigeria.

The workshop was convened to sensitize lawyers from across the country about the Freedom of Information Act and on the need for them to provide legal and litigation assistance to the media community in freedom of information and freedom of expression cases to enable the Media to more effectively fulfil their constitutional duty of upholding the responsibility and accountability of the Government to the people.

It was also aimed at exploring avenues for ensuring that public institutions fulfil the duties and obligations imposed on them by the Freedom of Information Act and fully implement and comply with its provisions.

The workshop also sought to enhance the effectiveness of the participating lawyers in litigating freedom of information and freedom of expression cases on behalf of media organizations, journalists and other deserving members of the society in various courts in Nigeria as well as to establish a platform to facilitate greater cooperation, collaboration and coordination in this regard.

They examined and debated various issues pertaining to the Freedom of Information Act and its implementation as well as the guarantees of the right to freedom of expression under the Nigerian Constitution and applicable regional and international human rights instruments.

They observed that in the light of the fact that the Judiciary is the institution charged with enforcing compliance with all aspects of the Freedom of Information Act, the active involvement and engagement of legal practitioners in the enforcement of the Act is a pre-condition for its effective implementation.

They also took cognizance of the fact that in Nigeria, as in other parts of the world, legal practitioners have a duty to use their training, knowledge, skills and status in society to provide guidance for their people, to enlighten them about their rights, to protect and defend them when their rights are violated or threatened and to lead them out of oppression in all circumstances when they are being unjustly treated.

Although there is no general mandatory requirement in Nigeria for legal practitioners to render pro bono legal services, participants noted that the general responsibility of lawyers under the Rules of Professional Conduct for Legal Practitioners, 2007 includes to “promote and foster the course of justice” as well as to “uphold and observe the rule of law”.

They agreed that the current low level of compliance with all aspects of the Freedom of Information Act by public institutions is extremely worrying. In particular, they identified areas of poor compliance to include the low level of responsiveness by public institutions to requests for information from members of the public; the widespread disregard by public institutions for their statutory obligation to proactively publish certain categories of information; and the dismal level of performance with regards to the requirement for public institutions to submit annual implementation reports to the Attorney-General of the Federation, to which consistently less than 10 per cent of public institutions have complied from 2012 to date.

Government’s silence and inaction in the face of such pervasive disregard for the provisions of an important piece of legislation like the Freedom of Information Act is creating a situation of impunity among public institutions in the implementation of the Act, which is a clear violation of the principles of the rule of law and should be checked, they pointed out.

Given that the Freedom of Information Act relies heavily on the judicial process for the enforcement of its provisions and since most judges are still not very familiar with the Act as it is a relatively new area of Law in Nigeria and in many parts of the world, participants agreed there is an urgent need to organize sensitization activities for judges across the country to familiarize them with the provisions of the Law that are particularly relevant for them, including the requirement in Section 21 of the Act that cases arising from allegations by applicants for information of denial of access by public institutions should “be heard and determined summarily”. Such sensitization activities will contribute to making the judicial remedies provided for in the Act much more effective.

Participants therefore resolved to take full advantage of relevant provisions of the Freedom of Information Act, particularly Sections 1(3), 2(6), 7(5), 20 and 21 of the Act, to enforce compliance with all aspects of the Law through the judicial process to the extent that litigation is possible or appropriate.

They resolved to work to give full effect in Nigeria to the judgment of the African Court of Human and People’s Rights in the case of Lohe Issa Konate v Burkina Faso, delivered on December 5, 2014, wherein the Court held that the imposition of a custodial sentence on a journalist violates the right to freedom of expression and breaches the treaty obligation of member States of the Economic Community of West African States (ECOWAS), including Nigeria, to “respect the rights of journalists” as contained in Article 66(2)(c) of the Revised ECOWAS Treaty, as well as the protection of free expression under Article 9 of the African Charter on Human and Peoples Rights and Article 19 of the International Covenant on Civil and Political Rights.

They further resolved to leverage the decision of the African Court in the Konate case to support journalists and media organizations that are victims of criminal legislation and to ensure that such laws which impose criminal liability on journalists and media organizations in Nigeria or which can result in the imposition of custodial sentences are repealed.

Participants noted that having regard to the importance of the Freedom of Information Act to democratic practice and good governance in Nigeria as well as the urgent need to have clarity on the scope of its application, the Supreme Court should expedite the hearing of the appeals arising from freedom of information cases that are presently pending before it, particularly the appeals touching upon the applicability of the Act to public institutions at the State and Local Government levels. In particular, the participants said the issues in dispute in the appeals raise important constitutional questions for which a full court should be empanelled to urgently hear and determine the appeals.

Further to the above, participants resolved to increase enlightenment and advocacy activities on the applicability of the Freedom of Information Act at the State level and to ensure the implementation of the Act in all the States of the Federation. They noted that the spirit and intent of the Act, which is to promote transparency and accountability in governance, citizen participation in government, good governance and a corruption-free society, are equally applicable to the States.

Participants recommended that in order to improve the capacity of judges to deal with freedom of information cases, applying the summary procedure prescribed by Section 21 of the Act, heads of the different courts given jurisdiction by the Act, should designate specific judges to hear and determine such cases. Such judges should then be sensitized/trained on the nitty gritty of the Freedom of Information Act so that they have a better understanding of the issues and be able to dispose of such matters coming before them speedily.

Participants commended the former and current Attorneys-General of the Federation for consistently submitting his annual report on the implementation of the Freedom of Information Act to the National Assembly without fail since the Act came into force in 2011, in accordance with Section 29(7) of the Act. They, however, called on the current and future Attorneys-General of the Federation to make efforts to improve on the quality of the reports and, in particular, to ensure that the reports contain all the information and details required by Section 29(7) and (8) of the Act.

Participants also urged the Attorney-General of the Federation to take immediate steps to live up to his statutory responsibility under Section 29(6) of the Freedom of Information Act, which requires him to ensure that all the public institutions to which the Act applies, comply with its provisions.

Participants thanked Media Rights Agenda for organizing the workshop and the Open Society Initiative for West Africa for sponsoring it.

The workshop was convened by Media Rights Agenda (MRA) and sponsored by the Open Society Initiative for West Africa (OSIWA).