Malami Blames Absence of Punitive Administrative Measures, Under-Utilization of FOI Act for Poor Implementation

Mr. Abubakar Malami (SAN)
Former Attorney-General of the Federation and Minister of Justice

Former Attorney-General of the Federation and Minister of Justice, Mr Abubakar Malami (SAN), has blamed the absence of punitive administrative measures that can be applied against defaulting public institutions and “gross under-utilization” of the Freedom of Information Act by members of the public for the lack of effective implementation of the Act.

Mr. Malami identified the challenges as part of the factors impeding the implementation of the Act in his 2022 Annual Report on the Implementation of the FOI Act, which he submitted to the National Assembly in his capacity as Attorney-General of the Federation and the official having oversight responsibility for the implementation of the Act, before he left office at the end of May 2023 upon the expiration of the tenure of the Buhari Administration.

He said it was “a matter of concern that in spite of reminders on submission of Annual Implementation Report to Attorney General of the Federation as stipulated in the FOI Act, the compliance index shows that a sizeable number of Public Institutions has not adhere to their reporting obligations since the Act was enacted.”

He noted that the Act does not provide for sanctions for failure to submit the Annual Implementation Report by Public Institutions to the Attorney General of the Federation and that the “naming and shaming method is still being deployed pending when appropriate punitive administrative measures would be put in place to punish defaulting Institutions.”

Saying that the “value and importance of the right of access to public records and information cannot be overemphasized”, Malami explained that the FOI Act “provides the legal framework that allows citizens, non-governmental organizations (NGOs) and other persons access to information, deliberations and actions taken by the government which affects them.”

According to him, “Our experience in the last 11 years of implementing the FOI Act has shown that access to public information is important for economic development of the country and important for the democratic functioning of the society, as it facilitates democratic participation, accountability and good governance.“

Mr. Malami said the Federal Ministry of Justice, as the focal Ministry with oversight on the implementation of the Act, in the 2022 reporting year took several measures to ensure and encourage public institutions to comply with the provisions of the FOI Act.”

He described various efforts made by the Ministry, including the fact that:

  • The Ministry’s FOI Unit maintained its quarterly interface and conversation with FOI Desk Officers across public institutions and offered legal advice, opinion and counseling to public institutions in complex FOI-related issues.
  • The Unit continuously updated the database for Freedom of Information Desk Officers in public institutions which was developed and populated to enhance their understanding of the application process, adding that an increasing number of public institutions have deployed FOI portals on their website thereby becoming sensitive to their proactive disclosure requirements under the FOI Act.
  • The Unit in the year under review, collaborated with access to information-based NGOs and Civil Society Organizations (CSOs) to ensure the provision of appropriate training for public officials across public institutions on the public’s right to access records and information held by government or public institutions.
  • The Unit was directly involved in capacity-building training for 10 public institutions upon request by serving as resource persons and facilitators.  The institutions are: Board Members of Nigerian Deposit Insurance Corporation (NDIC), the Federal Ministry of Labour and Employment, the Federal Ministry of Works and Housing, the Ministry of Communication and Digital Economy, the National Agency for the Control of Aids (NACA), the Independent National Electoral Commission, the National Information Technology Development Agency (NITDA), the Federal Ministry of Science and Technology, the Federal Ministry of Finance, and the National Library of Nigeria.
  • As part of the reform mechanism of the Buhari Administration, the Unit partnered with phe Bureau of Public Service Reforms (BPSR) to facilitate the Bureau’s Tea-Break Reform meetings for selected public institutions and the award of excellence for reforms scorecard on Nigerian Content Development and Monitoring Board.
  • The Ministry with support from the Rule of Law and Anti-Corruption (ROLAC) under the British Council developed the FOI Compliance Monitoring and Proactive Disclosure templates to facilitate disclosure by public institutions. The templates are expected to facilitate documentation of FOI events within each public institution on a monthly basis leading to a seamless population of the institution’s annual compliance report on or before February 1, each year.
  • In view of the cardinal role of proactive disclosure in the FOI Act implementation process, the Ministry in August, 2022 engaged FOI Desk Officers across public institutions on their Proactive Disclosure obligations under Section 2 of the Act. Experts were brought in to train them on international best practices with the result that an increasing number of public institutions are becoming sensitive to the Proactive Disclosure requirements under the FOI Act.
  • In line with the UN General Assembly proclamation which designated September 28, every year as “International Day for Universal Access to Information”, the Ministry, in compliance with the theme of the 2022 celebration, namely: Artificial Intelligence, e-Government and Access to Information, held an event to showcase the role of Access to information laws and their implementation to building strong institutions in Nigeria on September 28, 2022 at the Ministry’s Olusegun Obasanjo Auditorium in Abuja.

Mr. Malami said these efforts underscore the fact the Ministry has “engendered a synergy and collaboration leading to a tremendous improvement in the applicability and usage of the Act by the Public.”

He noted that Nigeria marked 11 years of implementation of the FOI Act in the 2022, adding that as is the case with all novel laws, there are bound to be challenges of implementation. 

Stressing that the Act was still facing “the perennial challenge of trying to shrug off a culture of secrecy and embrace the values of transparency and openness embedded in the Act by public officials”, he highlighted some of the challenges encountered in the implementation of the Act in 2022 as:

  • Lack of effective record keeping and systematic means of record management in a manner that facilitates public access.
  • Inadequate or non-provision of resources to fund FOI Act activities as there is general lack of funding for FOI activities in some public institutions.
  • General apathy amongst those that should operate the Act, which is worsened by a high level of ignorance about the provisions of the Act and the nature of obligations expected of public institutions, which creates a need for intense and continuous sensitization of Government officials.
  • Public Institutions invariably responding to requests well beyond the seven days required by the Act primarily because they lack necessary structures to respond due to ignorance of timelines stipulated in the Act.
  • The challenge of bureaucracy and bottlenecks in most public institutions, which hinders the effective compliance of the Act.
  • The fact that the FOI Act does not provide for sanctions for failure to submit Annual Implementation Report by Public Institutions to the Attorney General of the Federation.
  • The refusal by high percentage of public institutions to set up FOI Units and to designate Desk Officers in line with Chapter 6.16.1 of the Guidelines on the implementation of the FOI Act 2011.
  • The reluctance of public institutions to develop FOI online portal to proactively publish their activities, operations and businesses as required by the Act to enable easy public access.
  • Inadequate Training of officials of public institutions on the Act, and
  • Gross under-utilization of the Act by members of the public.

Saying that for the 2022 fiscal year, the office of the Attorney-General of the Federation received a total number of 90 reports from public institutions, Mr. Malami listed the number of public institutions that have submitted their annual implementation reports to the office annually since the enactment of the Act as: 16 public Institutions in the year 2011; 32 in the Year 2012; 51 in the Year 2013; 60   in the Year 2014;  44 in the Year 2015; 54 in the Year 2016; 73 in the Year 2017; 70 in the Year 2018; 89 in the Year 2019; 73 in the Year 2020; and 89 public institutions in the Year 2021.