Special Rapporteur on FoE and ATI in Africa Issues Advisory to Nigeria on Implementation of  FOI Act 

Lawrence Mute Special Rapporteur on Freedom of Expression and Access to Information in Africa, Commissioner Lawrence Mute.
Lawrence Mute
Special Rapporteur on Freedom of Expression and Access to Information in Africa, Commissioner Lawrence Mute.

The Special Rapporteur on Freedom of Expression and Access to Information in Africa, Commissioner Lawrence Mute, has issued an Advisory Paper titled ‘Ensuring Effective Implementation of Nigeria’s Freedom of Information Act (2011) following his advocacy visit to Nigeria which he undertook from September 24 to 27, 2018.

Commissioner Mute, in the Paper stressed the fact that access to information legislation enables the public to access information in the custody of public institutions and relevant private bodies, so as to entrench the culture of transparent and accountable governance.

He pointed out that: “It is essential that freedom of information legislation be anchored on the African Charter on Human and Peoples’ Rights (the African Charter), as well as relevant normative instruments of the African Commission on Human and Peoples’ Rights such as the Declaration of Principles on Freedom of Expression in Africa, the Model Law on Access to Information in Africa, and the Guidelines on Access to Information and Elections in Africa.”

The Advisory Paper made 15 key recommendations which he said Nigeria should implement to ensure full realisation of the FOI Act in the country.

The Rapporteur recommended that Government should expedite the review of the laws which are inconsistent with the provisions of the Act in order to streamline and optimize compliance with it.

Specifically, it called for the repeal of pertinent sections of the Official Secrets Act, including Sections 1(1) (a), (b), 1(2) and 9(1), to ensure compliance with the letter and spirit of the FOI Act in respect of exempted information. He also advised Nigeria to develop a system-wide process of reviewing and updating existing security classification systems for national security related public service documents under the purview of the existing National Security Agencies Act, to align such security classification systems with the provisions of the FOI.

He also asked Nigeria to recalibrate the oath of secrecy required of all civil servants to ensure it is not used or perceived as justification for denying requests for information or the proactive disclosure of information as stipulated under the FOI Act.

On proactive disclosure, the Paper recommends that a service wide circular should be issued by both the Secretary to the Government of the Federation and the Head of Service of the Federation, directing all public institutions to henceforth take concrete steps to prioritise compliance with their proactive disclosure obligations under the FOI Act.

The Advisory also recommended that government or public institutions should have proper record management systems; that capacity building training on the FOI Act should be conducted on a routine basis as opposed to on an ad hoc basis; and the creation of awareness programmes on the FOI Act should be prioritised, and the Government should partner with civil society organizations for this purpose.

Commissioner Mute recommended that information should be provided in accessible formats and in a manner that the public understands, adding, organizations, especially those in technical sectors, should set out information in a manner that can be easily understood by the public and that responses on information-requests should be expedited.

The rapporteur also made a case that Freedom of Information units of government agencies should be given adequate resources to enable them execute their FOI Act mandates in addition to this he advised public institutions to mainstream FOI activities into their mandated core business and/or activities, so that they may leverage on the already available funds to conduct various freedom of information activities as a matter of course.

The advisory called for the strengthening of relevant institutions to effectively play their parts. It says the Freedom of Information Unit in the Ministry of Justice should be strengthened by updating the existing Guidelines on Compliance with the Act while  institutions such as the National Human Rights Commission, the Public Complaints Commission, and the relevant Committees of the National Assembly such as the Committee on Reform of Government Institutions in the House of Representatives and the Committee on Judiciary and Governmental Affairs of the Senate, should be strengthened to effectively play their oversight role under the Act.

States, the advisory recommended, should enact or amend their freedom of information laws to conform to the provisions of the Act to ensure uniform national applicability.

It called for the review of legal sanction regime in consultation with stakeholders to ensure the effectiveness of the FOI Act while the Freedom of Information Unit of the Federal Ministry of Justice should, as part of its remit, routinely issue and publicise an annual table of compliance with the Act, and managers of non-complying institutions should be required to provide public accounting for their failings.

To strengthen the effective implementation of the FOI Act, the Advisory called on Government to continue implementing the open Government Partnership (OGP) Action Plan within the set timelines and on State Governments to sign up to the OGP commitments and enact robust and progressive freedom of information laws as a measure of the level of their commitment to the realisation of the objectives of the OGP framework.

The Government should establish special enforcement rules under the Act while also training and sensitizing judicial officers on the interpretation of the Act and their freedom of information obligations, to ensure they are within the spirit of the law in their determinations.

Calling on the government to learn from other African countries such as Ghana, Uganda and South Africa which have enacted whistle-blowing legislation the Advisory said the Nigerian Government should enact full legislation to protect whistle-blowers. It called on Government to also ensure greater synergies between the provisions of the Federal Executive Councils approved whistleblowing policy and policies on the same subject matter adopted by regulatory institutions, including the Pension Commission for operators within the Pension Industry, the Central Bank of Nigeria on the financial industry, the National Insurance Commission on the insurance industry, and the Securities and Exchange Commission for companies listed on the Stock Exchange.

It called on the Independent National Electoral Commission (INEC) to mainstream the Guidelines on Access to Information and Elections in Africa in its work while also calling on the ECOWAS Network of Electoral Commissions to support electoral management bodies within ECOWAS on how to use the Guidelines to support elections processes in the sub-region.

Special rapporteur, Commissioner Mute, commended the Government for putting the Freedom of Information Unit in place at the Ministry of Justice, and stressed the importance of political will in order to implement the provisions of FOI Act.

He also thanked the Ministry of Justice for hosting him and his delegation during the advocacy visit.

The full advisory paper is available online at: http://www.achpr.org/mechanisms/freedom-of-expression/Advisory-Paper-Nigeria-Freedom-of-expression-an-access-to-information/