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FREEDOM OF INFORMATION ACT: CONCEPTIONS, MISCONCEPTIONS AND WHY WE ARE SUING NSCDC.

by on April 14, 2016
 

Sometime in February, there was headline news that the Nigerian Securities and Civil Defense Corp employed about 3000 persons without following the laid down procedure and due process. A lot of people lamented and wailed about this but Salisu Mohammad, a Social Rights Activist from Kastina State engaged the services of our law firm, Obono, Obono & Associates to exercise his rights as contained in the Freedom of Information Act. I was immediately assigned this brief by my principal, Chief Okoi Obono-Obla.

Section 1 of the FOIA states: “(1) Notwithstanding anything contained in any other Act, law or regulation, the right of any person to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution howsoever described, is established.  (2) An applicant under this Act needs not demonstrate any specific interest in the information being applied for.  (3) Any person entitled to the right to information under this Act, shall have the right to institute proceedings in the Court to compel any public institution to comply with the provisions of this Act.”

Empowered by this section of the FOIA, we wrote a letter to the Nigerian Securities and Civil Defense Corp requesting the following information

  1. The name, address and educational qualification of each of the 3000 applicants employed by the Nigerian Security and Civil Defence Corps in February, 2016 under the guise of replacement;
  2. The Local Government Area origin of each of the 3000 applications employed by the Nigerian Security and Civil Defence Corps in February, 2016 under the guise of replacement; and
  • The procedure and criteria used by the Nigerian Security and Civil Defence Corps in employing these applicants.

The said application was duly served on the Commandant-General by personal service. By the provisions of Section 5 (1) of the Freedom of Information Act the Commandant-General has within seven (7) days after the application was received to make the information available to us. However by virtue of Section 4 (b) of the Freedom of Information Act if the public institution considers that the application should be denied, the institution shall give a written notice to the applicant that access to all part of the information will not be granted, stating reasons for the denial and the section of the Act under which the denial is made.

We waited for the 7 days allowed by law and the Commandant-General refused, failed and or neglected to allow us access to the information requested. By virtue of Section 7 (4) of the Freedom of Information Act (supra) where the government or public institution fails to give access to information or record applied for under the Act or part thereof within the time limit set out in the Act, the institution shall for the purposes of the Act be deemed to have refused to give access.

The refusal by the Commandant-General to grant us access to the requested information is wrongful, illegal and smacks of administrative impunity; one that the FOIA is designed to cure. We cannot allow such administrative rascality and impunity to stand. Section 20 of the Freedom of Information Act (supra) empowers any applicant who has been denied access to information or a part thereof to apply to the Court for a review of the matter within thirty days after the public institution denies or is deemed to have denied the application. Section 7 (5) of the Freedom of Information provides that where a case of wrongful denial of access is established the defaulting officer or institution shall on conviction be liable to a fine of N500, 000.00 (Five Hundred thousand Naira).

We have filed a process in this matter in the Federal High Court Abuja. A lawyer will always do his duty by the law. But cases like this shoots up the adrenaline quotient of any lawyer who is a crusader and an activist. We must do what is right. We must hold our public institutions and public officials accountable. This is the purpose of the Freedom of Information Act.

It is pertinent to point out here that this law is applicable in every state of the Federal Republic of Nigeria. Any argument to the contrary is clearly legal hocus-pocus and deft deployment of administrative and judicial obscurantism. John Gaul Lebo, the Speaker of the Cross River State House of Assembly has argued that the Act needs domestication in CRS for it to be effective and that such domestication is being hindered by the Official Secret Act. His argument is untenable in the face of recent judicial decisions.

In the case of General India Garba vs Commissioner of Finance, Benue State, Suit No. MHC/ 2564/M/2012, (my principal, Chief Okoi Obono-Obla appeared as the counsel for the plaintiff in this matter) decided by the High Court of Benue State presided over by Honourable Justice S.O. Itodo on the 25/5/2014 the court held that the Freedom of Information Act 2011 applies to all States of the Federation including Benue State . In the ruling Justice Itodo overruled the objection raised by the Counsel to the Defendant that the Freedom of Information Act 2011 was not applicable to Benue State because the Benue State House of Assembly is yet to enact a Law domesticating the Act in the State.

The Court upheld Chief Obono-Obla’s  argument that by virtue of Section 4 of the Constitution of the Federal Republic of Nigeria, the National Assembly has the constitutional jurisdiction to enact the Freedom of Information Act , 2011 and therefore the provisions of the Act being extant remains binding in all States of the Federation .The Court therefore held that the suit filed by General Garba seeking to compel the Defendant to allow him access to expenditure of revenue allocation from the Federation accounts to Local governments councils in Benue State was competent and the Court has jurisdiction to hear and determine it.

Be that as it may, Section 28 of the FOIA deals squarely with this. It says: “(1) The fact that any information in the custody of a public institution is kept by that institution under security classification or is classified document within the meaning of the Official Secrets Act does not preclude it from being disclosed pursuant to an application for disclosure thereof under the provisions of this Act, but in every case the public institution to which the application is made shall decide whether such information is of a type referred to in Sections 11,12,14,15,16,17,19,20 or 21 of this Act.  (2) If the public institution to which the application in subsection (1) is made decides that such information is not a type mentioned in the sections referred to in subsection (1), access to such information shall be given to the applicant. (3) If the public institution, to which the application mentioned in subsection (1) is made, decides that such information is of a type mentioned in sections referred to in subsection (1), it shall give notice to the applicant.”

The worst case scenario deducible from section 28 of the FOIA, supra, is that a public institution can write back to an applicant explaining why the said information cannot be released, then the matter will become a question for the courts to answer. But to use the Official Secrets Act as a reason for a blanket denial of citizens request for information under the FOIA is an illegality that is pregnant and still nursing a baby.

Another argument being put forward by opponents of the FOIA is that it did not expressly annul the Official Secrets Act. This argument is lame. Section 28 of the FOIA, supra, encapsulates the Official Secrets Act and explains it in capsule. Reading Section 28 of the FOIA and the provisions of the Official Secrets Act together, you will see that both seek to complement each other. None needs the permission of the other to function. Any attempt to use the Official Secrets Act to asphyxiate the operation of the FOIA is a crystal case of blissful ignorance or deliberate mischief.

To know has become a right, let’s exercise it. Gone are the days where government transactions were clothed in cult like secrecy. The FOIA has lifted the veil. Instead of spreading rumours, demand to know what is happening. Demand to know how public funds are being spent. Demand to know how you are being represented. Demand to know how public officials are managing our public trust. The more we demand, the more our public institutions and officials will come to realize that this is our right and it is their duty to supply us information as demanded.

Since the inception of this law, my principal, Chief Okoi Obono-Obla, through his law firm, Obono, Obono & Associates has handled over 20 applications under the FOIA; many of these pro bono. The files here are high, the knowledge is deep and I am here: to do my duty; first as Nigerian, then a lawyer. So help me God!

 

 

First Baba Isa (FBI) is a Legal Practitioner and writes from Abuja

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@firstbabaisa

 

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