Journalism Practice And The Constitutional Demands On Journalists – An X-ray Of The Foi Act
Being a Lecture Series Organized by the International Institute of Journalism, Port - Harcourt in conjunction with the Bayelsa New
Media Team (BNMT)
DATE: MARCH 8, 2013
VENUE: MINISTRY OF JUSTICE AUDITORIUM, RIVERS STATE SECRETARIAT COMPLEX, PORT HARCOURT, RIVERS STATE
"Access to public records gives citizens the opportunity to participate in public life, helps set priorities, and hold their governments accountable. A free flow of information can be an important tool for building trust between a government and its citizens. It also improves communication within government to make the public administration more efficient and more effective in delivering services to its constituency. But, perhaps most importantly, access to information is a fundamental human right and can be used to help people exercise other critical human rights…Access to information has been more recently recognized as an instrument that can be utilized to fight poverty in developing nations….The Carter Centre"
Introduction:
It is indeed a great honour and privilege for me to be considered worthy by the International Institute of Journalism to present this paper titled “JOURNALISM PRACTICE AND THE CONSTITUTIONAL DEMANDS ON JOURNALISTS – AN X-RAY OF THE FoI ACT”. When I received the invitation to attend this very significant event, two issues ran through my mind. First, I meditated on the plight of journalists especially how much effort they made to pressurize the National Assembly to pass the Freedom of Information Bill into an Act. The Nigerian Union of Journalists provided much-needed leadership and at all times, formed a formidable ally with organized civil society during debates, aggregated interests and sensitized the masses. Let me commend the Nigerian journalists in this tortuous enterprise.
Secondly, I also ruminated on the very obvious handicaps of journalists in implementing the FoIA. Given the Nigerian experience, I have always held the view that the Nigerian journalist is an endangered species. In principle, journalism is the fourth estate of the realm but not really in practice. If I may ask how many people, and institutions: (public and private) have been compelled by the FoI Act to subject themselves to public scrutiny? Again, how many public office holders have been dragged to court on account of abuse of office since the coming into force of the FoIA? Yet how many institutions will be ready to voluntarily produce needed records to aid prosecution to exonerate those institutions of wrong doing? How many journalists can conjure the courage to invest their meager pays in protracted litigations in their effort to compel institutions to produce information that have overriding public interest?
Recognizing the fact that the implementation of the FOI Act is the co-responsibility of both the government ("supply side") and the governed ("demand-side) the attitude of public administrators is critical to the successful implementation of the FoIA. Has the FoI Act nullified the Official Secrets Act or do they exist simultaneously? If they do, then where are the areas of conflict? Since the journalism profession involves intense research and investigation, what role do we expect them to play in the implementation process of the FoIA. Do they have the tools to enable them conduct research? We need to turn attention to some of these issues.
It is universally guaranteed in Article 19 of the Universal Declaration of Human Rights and enshrined in the written constitutions of almost all countries around the world. In Nigeria, it has been ratified and enacted in CAP 10 Laws of the Federation of Nigeria (1990). In lands where unwritten constitutions are operational, the freedom of expression is observed not as a mere convention but is regarded as sacrosanct and indispensable for human survival. That is why the freedom of information is internationally guaranteed in the United Nations Charter, and adopted by most regional and continental organizations.
The freedom of the expression and the press is one of the bastions of democracy and good governance. In fact, the objective and accurate dissemination of information by the press in a democratic system is as important as oxygen to the life of a man. It was for this reason that the Freedom of Information (FOI) Bill featured prominently in the second tenure of the Obasanjo administration but its passage was truncated by the self-aggrandizing tendencies of members of the National Assembly (NASS). Regardless of the ideological differences in the various socio-political systems of the world, press freedom - a logical extension of man's inalienable freedom of expression is today a universal right. Three aspects of the concept are relevant. These include:
• the right to seek information and ideas;
• the right to receive information and ideas;
• the right to impart information and ideas.
The world over, access to information is regarded as a key to democratic governance. Basically, the Right to Freedom of Information refers to the right to access information held by public bodies such as government Ministries, Departments and Agencies (MDAs) as well as private bodies like Non-Governmental Organizations, private enterprises, global agencies and parastatals. Freedom of Information reflects the principle that public bodies take custody of information for the benefit of the public. This implies that groups and individuals are legally empowered by parliament to access information for overriding public interest. In a very narrow dimension, Freedom of Information connotes that society can use the doctrine of Freedom of Information to push for accountability, transparency and good governance.
Over 70 countries have implemented the Freedom of Information Act. This form of freedom of information legislation generally means the set of rules that allow for access of information or records held by the government bodies. Such laws define a legal process by which government information is available to the public.
In many countries privacy or data protection laws may be part of the freedom of information legislation. The basic principle behind most freedom of information legislation is that the burden of proof bills is on the body that asked for information, not the person who asked for it. Then the person does not usually have to give an explanation for their request, but if the information is not disclosed, a valid reason is to be given.
Meaning of Freedom of Information
The practice of opening up Government to citizens has existed for centuries. Sweden was the first country to pass the Freedom of Information (FOI) Law in 1766 and was followed over a century later by Columbia in 1888. The Swedish law was actually said to have been inspired by a Chinese practice of public disclosure dating back to thousands of years. In Africa, however, information disclosure is a new phenomenon. The law was first signed by South Africa in 2000 followed by Zimbabwe, Angola and Uganda by 2004. The journey of FOI in Nigeria actually started in September 2004, when the House of Representatives passed a Bill for an Act to Make Public Records and Information More Freely Available. Issues of freedom of information have been covered by various international conventions, charters and statements.
Freedom of access to government information goes beyond the media's desire to play watchdog. The lawyer's interest in representing clients, the librarians need to be supportive of inquiring patrons, or the historian's desire to learn more about the workings of government. It goes to the heart of democracy. It is the best protection individuals have against rulers, the best way of knowing that the laws are enforced honestly, even handedly, and efficiently. Freedom of access promotes citizen participation and empowerment. When those affected by
regulations or rules understand such laws, they will be more willing to obey them if they are accessible. Also, the quality of government decisions usually would be better if they admit public input in the process of developing them.
Legalization of access to information confirms public ownership of government information, and that it is gathered or created, maintained and used for public purposes.
The UN General Assembly in 1964 averred that 'freedom of information is a fundamental human right and is the touchstone for all freedoms to which the UN is consecrated'.
Article 19 of the Universal Declaration of Human Rights, adopted in 1948, states that:
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."
Today freedom of speech, or the freedom of expression, is recognized in international and regional human rights law. The right is enshrined in Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples' Rights.
The AU Declaration of principles on freedom of expression in Africa part IV posits that “Public bodies hold information not for themselves but as custodians of the public good and everyone has the right to access the information”. Others include the African Charter on Human and Peoples Rights – Article 9, which states that 'every individual shall have the right to receive information' while the ECOWAS treaty – Article 4g (Fundamental Principles) upholds the charter of AU.
A basic issue in any freedom of Information Act is that of exemptions, which cover national security, personal privacy, public security, commercial secrets and internal deliberations of organizations. Most fundamental is the issue of enforcement. The third crucial thing is access. Institutions must make available information in a manner that it can be easily understood by any member of the Public. The UN pushes for maximum disclosure of any information requested as well as the obligation to publish information for public perusal and scrutiny.
The Freedom of Information Act is now a subsisting Law in Nigeria. John Austin a 19th century English jurist defined law as definite rule of human conduct with appropriate sanctions for their enforcement. He added that both the rules and the sanctions must be prescribed daily by constituted human authority. The freedom of Information act is an example of statutory law. It is a law passed by legislative bodies and is written down formally. When the legislative branch adopts a proposal or a bill and it is approved by the executive branch, it becomes a law and is integrated into the proper section of a municipal code among others.
The freedom to seek information is guaranteed and reinforced by some international instruments. Nigeria is signatory to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. It is also guaranteed in Article 9 (1) of the African Charter on Human and Peoples Rights, which is part of Nigeria's domestic law under the African Charter (Ratification and Enforcement) Act. At its Summit in Maputo, Mozambique in July 2003, the leadership of the African Union adopted a set of Principles elaborating Article 9 of the African Charter which, among other things, declare that the African Charter entitles “everyone to access information held by public bodies” and to “access information held by private bodies which is necessary for the exercise or protection of any right”.
Anticipated Benefits of the FoIA
For professional journalists, Freedom of Information is like the oxygen or an elixir of life. This very vital freedom may be new to Nigeria; it is not so in other lands where democracy has taken root centuries ago. The first FoI law was passed in Sweden in 1766. In the centuries following, other nations in Latin America, Asia, Europe, and the United States have successfully implemented it. Even nascent democracies in Africa: Uganda, and South Africa have passed parallel legislation even though their attempts at implementation have been somewhat unevenly.
As other nations have experienced, the benefits of the FoIA are far-reaching —both singularly and collectively. Singularly in the sense that the newly accessible information will allow individuals to access and interact with government in a way not fathomed before.
Aids the Anti-Corruption Crusade: The FoIA is a veritable tool for fighting against corruption. With adequate information, light will be shed on a lot of sensitive issues, this would reduce the incidence of corruption and since anybody could be investigated without being informed, everybody would try to obey the law and avoid any action that will dent their image.
Reinforces the Concept of Accountability: It will make democracy more meaningful because the public will be able to hold the elected responsible for their actions. It will also encourage the active participation of the electorate in state decision making processes. An underlying foundation of a democratic state is the existence of an informed population able to thoughtfully choose its representatives and hold government accountable.
Journalists will be able to freely carry out their duties in Nigeria as the 1999 constitution of the Federal Republic of Nigeria, Chapter II, section 22 states that 'The Press, radio, T.V., and other agencies of the mass media shall at all times be free to uphold the fundamental objectives (political, economic, social, educational, environmental objectives) and uphold the responsibility and accountability of the government to the people.
The benefits are collective to civil society, businesses, and government in the sense that freedom of information is a fundamental marker on the road towards economic development and progress, anticorruption, civic engagement, and a properly functioning democracy.
On an individual level, the FoIA enables every citizen with the right to know what our government is doing and how it is spending public funds. This means that all government spending, with a few exceptions, now falls within the purview of public scrutiny.
The Right to Know Initiative (R2K) sums up the benefits of the FoIA in one sentence: "Your life depends on it!" This is one way of saying that the quality of life of anyone and of any society depends on the frontiers of their knowledge. There are many benefits in the FoIA for governance, leadership values, citizenship, and professional groups”
The FoIA allows any person, for any reason, to access information that is in the custody of any public official or institution one week from the date requested whether or not it is contained in written form. In the interest of the State, however, some exceptions exist, such as information relating to defense or the conduct of Nigeria's international relations.
Information disclosure adds social, economic and political value to the nation. It supports sustainable development, encourages equitable economic growth, It also cements public trust and supports human rights. It should therefore be a uniting factor between a suspicious public and an accountable public service.
Without the FoI Act, it is impossible to hold corrupt officials accountable when corruption and embezzlement are commonplace if no one outside of government is privy to budgetary and other documentation. By making these documents accessible to all, the fight against corruption become one in which all can competently participate. In sum, effective execution of the newly passed Freedom of Information Act in Nigeria might just be the entry point to public efficiency and accountability.
Such accountability will amongst other things, force government officials to keep tidier records and dis-incentivize graft, yet the everyday implications for Nigerians are much more far-reaching. Armed with the right to know, Nigerians will no longer have to ask questions such as who is in charge of repairing their local roads and where the money for such projects have disappeared to.
The FoI A now puts this type of data at the public's disposal. Access to such information will be available to all who seek it and the methods for doing so will be widely publicized.
As a result, business owners will be able to assess risks and operate their businesses more efficiently as they gain an understanding of foreign and domestic state investments; students will have access to legitimate government records when conducting important research; healthcare workers can track where funds in the health budget have been allocated and how much has actually been spent, and so forth.
Promotes Good Governance: The Freedom of Information Act is good for society as a whole for an innumerable amount of reasons; the overarching theme, however, is that FoIA is good for democracy. Freedom of information laws in general, and the Nigerian FoIA in particular instigate key democratic functioning by forcing government to operate more efficiently and transparently while simultaneously inspiring citizens to become active participants in the civic process.
In addition to the more obvious benefit of accountability, the FoIA will decrease government opacity and secrecy. Government transparency is critical to a democratic and healthy society, both of which Nigeria are taking steps to become. In the wake of a new administration, setting off the next term with "open government" policies will be key to its success in ushering in true democracy and countering endemic corruption. In the final analysis, the FoI will serve as an important complement to anticorruption measures. The reduction of corruption will naturally attract Foreign Direct Investment.
FOIA and the Nigerian Journalists:
James D. Wolfensen (1999) echoed these sentiments when he was the president of the World Bank: “A free press is not a luxury. A free press is at the absolute core of equitable development, because if you cannot enfranchise poor people, if they do not have a right to expression, if there is no searchlight on corruption and inequitable practices, you cannot build the public consensus needed to bring about change
Ten Guiding Principles of Journalism
1. Public interest: A journalist is expected to serve the general welfare by informing the people and enabling them to make judgments on the issues of the time.
2. Truth and accuracy Journalists strives to ensure that information disseminated is honestly conveyed, accurate and fair.
3. Verification: Practicing Journalists seek out multiple witnesses, disclosing as much as possible about sources, or asking various sides for comment. The discipline of verification is what separates journalism from other modes of communication, such as propaganda, fiction or entertainment.
4. Fairness: The goal of every journalist is to cover the news impartially and to treat readers, news sources, advertisers and all parts of our society fairly and openly.
5. Distinguishing fact and comment Media practitioners must distinguish clearly between comment, conjecture and fact. This is why facts are sacred.
6. Accountability: The journalist shall do the utmost to rectify any published information which is found to be harmfully inaccurate.
7. Independence: Journalists should be free of obligation to any interest other than the public's right to know. This is why the pen profession is guided by the Social Responsibility function.
8. Transparency: Aim to attribute all information to its source. Where a source seeks anonymity, do not agree without first considering the source's motives and any alternative, attributable source. Where confidences are accepted, respect them in all circumstances.
9. Restraint: The public has a right to know about its institutions and the people who are elected or hired to serve its interests. People also have a right to privacy and those accused of crimes have a right to a fair trial. There are inevitable conflicts between the right to privacy, the public good and the public's right to be informed. Each situation should be judged in the light of common sense, humanity and the public's rights to know.
10. Originality: In the course of writing, journalists are not expected to engage in not plagiarism; they are expected to be original
The first among them is that the purpose of journalism is to provide people with the information they need to be free and self-governing.
1. Journalism's first obligation is to the truth.
2. Its first loyalty is to citizens.
3. Its essence is a discipline of verification.
4. Its practitioners must maintain an independence from those they cover.
5. It must serve as an independent monitor of power.
6. It must provide a forum for public criticism and compromise.
7. It must strive to make the significant interesting and relevant.
8. It must keep the news comprehensive and proportional.
9. Its practitioners must be allowed to exercise their personal conscience.
The eternal guiding principle of journalism practice is the human conscience. In practicing his art, a journalist is supposed to jettison his parochial personal interest in favour of the public interest, and here lies the social responsibility function of a journalist.
Journalism entails a high degree of public trust. To earn and maintain this trust, it is morally imperative for every journalist to maintain a high ethical standard. This is more imperative when they push for transparency or strive at exposing corruption. Whereas, truth is the cornerstone of journalism, a journalist should always have a healthy regard for the public interest in tandem with the principles of natural justice. Some of the principles deserve moral than casual mention:
Editorial Independence: Decisions concerning the content of news should be the responsibility of a professional journalist.
Accuracy and Fairness: The journalist owes society a responsibility to protect public interest. One of such ways to achieve this is to report what people should know in a factual, fair and balanced manner. A journalist who does this naturally earns public trust and confidence. Thus, a journalist should refrain from publishing inaccurate and misleading information. In the event of publishing such, correction must be promptly made. There is also the right to reply as a cardinal rule of practice. Again, in the discharge of his functions, a Journalist should strive to separate facts from mere opinions, hunches and comments.
Privacy: As a general rule, a journalist should respect the privacy of individuals and their families unless it affects public interest. This implies that information on the private life of an individual or his family should only be published if it impinges on public interest. However, information on private life can be published if it is aimed at exposing crime or serious misdemeanor; exposing anti-social conduct; protecting public health, morality and safety and or preventing the public from being misled by some statement or action of the individual concerned
Privilege & Non-Disclosure: Confidentiality in matters pertaining to sources of information is a principal universal tenet of journalism practice. A journalist is not expected to disclose the source of information except under peculiar circumstances of litigation to prove his innocence. By the same token, a journalist should not breach an agreement with a source of information obtained as “off- the-record”.
Decency: A journalist should dress and comport himself in a manner that conforms to public taste and morality. Similarly, a journalist should refrain from using offensive, abusive or vulgar language. In the event of any personal grief, enquiries should be carried out and approaches made with sympathy and discretion. The only exception may be that if the grief is reported in furtherance of the public's right to know.
Discrimination: A journalist should refrain from making pejorative reference to a person's ethnic group, religion, sex or to any physical or mental illness or handicap. This is unethical
Reward & Gratification: It is against the ethics of journalism for a practitioner to solicit or accept bribe, gratification or patronage to suppress or publish information. To demand payment for the publication of news is inimical to the notion of news as a fair, accurate, unbiased and factual report of an event. Because of the economic strangulation in Nigeria, most publishers throw this ethical principle to the dust-bin.
Children & Minors: A journalist should not identify, either by name or picture, or interview children under the age of 16 who are involved in cases concerning sexual offences, crimes and rituals or witchcraft either as victims, witnesses or defendants. A minor in law cannot be held reprehensible.
Access to Information: A journalist should strive to use open and honest means in the gathering of information. Exceptional methods may be employed only when the public interest is at stake but such means should not violate the right to privacy ( i.e) Wire tapping. A journalist should strive at all-times to enhance press freedom and responsibility and avoid plagiarism-which is an offense.
Social Responsibility: A journalist should promote universal principles of human rights, democracy, justice, equity, peace and international understanding. Journalism is a discipline that is designed to build and develop society and not to promote dissent, polarity and disunity.
Implementation Challenges of the FoI Act
When considering the successful implementation of the Act, it must be acknowledged that presently, virtually all government information in Nigeria is classified as top secret. This culture of secrecy will make it difficult to get information from any Ministry, Department or Agency (MDA). Also, there are still subsisting laws that could prevent civil servants from divulging information, notably the Official Secrets Act, the Evidence Act, the Public Complaints Commission Act, the Statistics Act and others. Reconciliation of the contradictory provisions of these laws with the FOI law is therefore imperative.
On May 24th, 2011 President Goodluck Jonathan signed the FoI Bill into an Act. Shortly after the FoI Act became operational, the Public Administration and Management Development Institute (PAMDI), in a retreat of Civil Society bodies in the Country observed that the Act contains more exemption sections and clauses than sections that grant access to information, alerting that some mischievous public officers can use these sections for unjust and mischievous purposes. For instance, only Sections 1 and 3 grant access to information; but as many as ten sections (Sections 7, 11, 12, 14, 15, 16, 17, 18, 19 and 26) are meant to deny the public access to information. Exceptions should ordinarily be clearly and narrowly drawn and subject to strict “harm” and public interest tests. Accountability does matter; so also transparency is necessary for accountability5 .
Poor Record Keeping Culture: However, there are other challenges of complying with the FOI Act. Some of these include poor culture of record keeping/maintenance and retrieval, capacity challenge in many public institutions, frustrating and time consuming bureaucracy in public service as well as widespread corruption and the high level of ignorance among the work force in the public sector.
So far, there is absence of a template, a kind of roadmap for government officials to follow. Sadly, Nigeria is a country without a precedent in open access to public information; government needs to evolve a coordinated public service – wide modality for the implementation of the Act. Stakeholders looked up to the office of the attorney general of the federation to provide such coordinated approach but that has not happened.
Existence of Conflicting Laws & National Security: By far the most daunting challenge to the effective implementation of the FOI Act in Nigeria, according to Sunday Okpeh, a 500 level law student of the University of Jos, is the existence of subsisting laws that conflict with it. Three of such laws are the Official Secrets Act, the Evidence Act, and the Statistics Act. These laws are yet to be repealed contrary to Section 28 of the FOI Act, which makes provision for the amendment or outright repeal of conflicting laws. Public officials who keep information required by members of the public are bound to fall back on these laws in preventing access public information. The FoI tends to favour the refusal of information when national security, defense or international affairs are concerned. National Security cannot be questioned.
In principle, the FOI Act affords every Nigerian the right to access or request for information domiciled with any public official, agency or institution. Apart from laying out the scope of public information the public can access, the ACT also provides details about time limits, exemptions, proactive publication of information as well as mandatory training for officials of government. The enforcement of this law is vitiated in society where a culture of secrecy has traditionally surrounded information about government coupled with a culture of poor record keeping in institutions and where the actions of career civil servants are have for decades been protected by the Official Secrets Act.
Ignorance of Journalists: Journalists are the principal purveyors of information but there is pervasive ignorance among journalists about the FOI Act and this is likely to constitute an impediment to its effective implementation as many of them appear to be unaware of its provisions and their duties and obligations under it. Media Rights Agenda had advised Journalists to play their watchdog roles of ensuring that the law works and transparency, accountability and ultimately, good governance is entrenched in Nigeria.
TWO SUCCESSFUL LITIGATION ON THE ENFORCEMENT OF THE FoI ACT.
The Power Holding Company of Nigeria was requested PHCN to release details of a World Bank-funded PHCN contract for the supply and installation of High Voltage Distribution systems in its facilities in Abuja, Lagos, and Ibadan. A coalition had applied to PHCN and the Abuja Electricity Distribution Company Plc, for copies of procurement documents and information relating to the contract for the supplies materials. The request was turned down by both PHCN Abuja and Electricity Distribution Company Plc, leaving the Coalition with no option but to approach the court with a motion ex-parte seeking the court's order granting it leave to apply for the prerogative order of mandamus to compel PHCN, its general manager in the management unit, B.C. Nwozor, and the attorney-general of the federation to provide it with details of the contract. Presiding Justice Ademola granted the coalition's application and PHCN immediately released the information requested after the judgment.
A legal practitioner, Ojukwu Chikaosolu, applied for a court's order to compel the Executive Secretary of the Petroleum Products Pricing Regulatory Agency, PPPRA, Reginald Stanley, to release information on the list of companies that had obtained import licenses and the volumes allocated in their respective permits. PPPRA bluntly refused to furnish the information and utterly denied Ojukwu the right to access to the information. However, Justice Gabriel Kolawole of the Abuja Federal High Court granted the lawyer the requested leave for an order to compel the executive secretary and the agency to release the requested information. The Nigerian Contract Monitoring Coalition and Chikaosolu were lucky as they got rulings compelling the information requested to be released. Many similar requests have been made but not many of the applicants have been lucky to get such reliefs.
Ene Enonche, national coordinator of Right to Know, R2K, an access to information group, is worried at the refusal of some public institutions to comply with the FOI Act even after court judgments have been issued. She said “While the testing of the FOI Act in our courts is good for precedence and interpretation of the law, it is more sensible for public institutions to develop the will to comply with the clear provisions of the Act”, she said. Open and transparent governance is not enhanced when citizens feel that they need to resort to the long and arduous path of litigation before they are able to obtain information from public institutions
In June 2011, the International Centre for Investigative Research requested the Independent Corrupt Practices and other related Offences Commission, ICPC, for a list of the high profile cases it had prosecuted. The Centre equally wanted details about the charge, amounts, courts and status of the case. The Commission's resident consultant, Folu Olamiti, asked for time to provide the list. Ninety days after it was obvious no attempt was ever made to compile the list. Consequently, the request was completely ignored.
Thus a twin dilemma of enforcing the FOI Act is the length of time it would take for litigations and appeals and the difficult legal process involved, which is usually beyond the reach of many Nigerians.
Unfortunately, however, government has neglected doing many things that ought to be put in place by the government to facilitate implementation have been neglected. For example, Section 13 of the FOI Act provides that government agencies will train their staff to be able to comply.
Section 3 (c) of the Third Schedule of the 1999 constitution empowers the Code of Conduct Bureau to ”retain custody of such declarations and make them available for inspection by any citizen of Nigeria on such terms and conditions as the National Assembly may prescribe.” There is not subsisting law to spell out the conditions under which it can disclose to the public declarations made to it by public officials. This is why the Bureau is adamant that it will not give Nigerians access to details asset declared by public officials.
Conclusion
Although, the right to freedom of information is enshrined under section 39 of the 1999 Constitution of the Federal Republic of Nigeria as well as Article 9 of the African Charter on Human and Peoples Right spelt out under Cap A07 Laws of the Federation of Nigeria, 20042, the passage into Law of the Freedom of Information Bill was however greeted with heated debates at the floor of the National Assembly, amidst the relentless struggle by civil society groups.
Eventually, the Freedom of Information Act (FOIA) was signed into law on the 28th of May, 2011 by President Goodluck Jonathan. It is the first law that empowers Nigerians with the right to access the records of public institutions (Ministries, Departments and Agencies) as well as the private sector, where they perform responsibilities of public nature. The Act which is a codification of the right to know and also a fundamental human right of every Nigerian citizen, grants all persons the legally enforceable right to access public held records. Any refusal to disclose information held by a public body to a requester is subject to appeal to the High Court.
The FOIA contains more exemption sections and clauses than sections that grant access to information, a situation which might be exploited by some public officers for mischievous purposes. There is however optimism that, as we continue to democratize the polity, the legal regime will be configured to ease the implementation of the FoI Act.
Recommendations
1. Every government or public institution must ensure the provision of appropriate training for its officials on public's right to access to information or records held by government or public institutions,” the Act mandates. About two years since the enactment of the FOI Act, government officials are yet to come to terms with their responsibilities under the Act.
2. Although Section 9 of the FOI Act demands that public institutions keep and maintain records, Section 2 specifically mandates such institutions to proactively publish the information.
3. Rise of Social Media: The popularization of Social Media has standing in the gap between the FoI Act and Journalists who are eager to enforce it. Most newspaper reports draw from discussions on facebook, myspace, goggle plus, but because of the spontaneity and speed of the social media, not all stories can be verified by journalists and other relevant publics.
4. Finally, it is the responsibility of all Nigerians to carry out the oversight functions of ensuring compliance to the provisions of the Act and not that of the government alone, and the entire citizenry must rise up and exercise “their right to know”, as the impact of the Act will not rest with the civil society alone.
5. Government should protect whistle blowers so as to encourage the public to carry out the responsibility of watchdogs. In Nigeria, there is challenge of not being able to protect whistle blowers. There is no law protecting whistle blowers hence the public finds it very difficult to encourage the spirit of diligence and vigilance.
6. It will be necessary to build public awareness and change the level of apathy among the citizenry, to make them vigilant enough to observe and make inquires when faced with breaches. It is also necessary to build an informed civil service, which is ready to change from the culture of bureaucracy and embrace transparency and accountability.
7. There is no effective collaboration between the office of the Head of Service and that of the Attorney-General to create the necessary enabling environment for the effective implementation of the Act. Such efforts should involve selected NGOs, CSOs and the media.
8. Public institutions should explore the use of various ICT and social media tools in engaging the FOI Act, particularly in the area of proactive disclosures, including twitter, Facebook, mobile phone apps, blogs, multimedia tools, among others. Public institutions should also use electronic records management systems to enhance the implementation of the Act.
Laws are made to be enforced and the FoI Act cannot be an exception. Underscoring the importance of FoI, Gordon Brown, and former Prime Minister of the United Kingdom averred "Freedom of Information can be inconvenient, at times frustrating and indeed embarrassing for governments. But Freedom of Information is the right course because government belongs to the people, not the politicians."
There has been a vehement push for the provision of budgetary allocations to facilitate the implementation of the Freedom of Information Act. It is my conviction that government will bring its political will to bear on this. Even so, it has become imperative for both private and public institutions to strengthen their internal structures for managing information and responding to information requests
It is my view that practitioners of the profession should emphasize investigative journalism because of its relevance to nation-building. We also need to inject some dynamism in the journalism profession especially with the threat journalists are facing. In Nigeria, journalists who work under very clear journalistic principles may not be in the good books of very influential businessmen and politicians. The mass media, with this added advantage of FoIA should be willing to rise up and take its glorious position as the fourth estate of the realm- a well distinct category like the other three arms of government.
Freedom of information and the right to freedom of expression and the press is vital for the survival of democracy just as oxygen is essential to human survival. With the FoIA in place and the social media revolution, journalists should tilt their practice to fit with investigative journalism to uncover the truth about issues pertaining to development in Nigeria. We should also learn the use of social media tools to enhance the practice of journalism. It is high time we challenged ourselves to engage in rigorous social research, and painstaking investigations to find out the what, when, where, who, why and how of events of critical national importance. The strength of democracy lies in the protection of the rights of the people through unfettered access to information, and no nation in the civilized enclave can achieve transparency, accountability and good governance without guaranteeing the citizens right to freedom of information.
Thank you for your attention.