Why Buhari needs FOI Act in Battle Against Graft

By Aliyu Abdullahi and Johannes Tobi Wojuola

President Muhammadu Buhari’s clear intention and sincerity of purpose on the “fight against corruption” and “Government Waste” is a common and global knowledge. However, the best of intentions do not necessarily translate to positive gain in realization of policy goals if the right machineries are not employed at the right time.

Communication is the lifeline of any relationship. Be it social, economic, or political. In political relationships, like any other relationship, it is naturally expected following the fact that certain persons or group function as representatives in power for the interests of a larger group, that these representatives develops and enforce a “feedback” mechanism to the people that gave them such mandate. This social contract compels the representatives not to be just figure head assignee to power, but one who is further compelled to maintain communication with the electorates on how he or she is faring with the mandate given, and this is the foundation on which the tenets of democracy is built upon.

The failure of this communication would result to a starved Government–Citizen relationship, and in most instances, kills it. Stephen Harper once said, “Information is the lifeblood of democracy. Without adequate access to key information about Government policies and programs, citizens and parliamentarians cannot make informed decisions and incompetent or corrupt governments can be hidden under the cloak of secrecy.”

In Nigeria today, it has become more crucial than ever – especially in an epoch of citizen suspicion of government – for governments to be as transparent and accountable as possible in all its activities. A failure of this would starve an already suspicious government-citizen relationship that will lead to a pile of mountain of tension among citizenry and early pressure on a new Government. The need for President Muhammadu Buhari’s Government to be very transparent for all to see its activities and appreciate its challenges and methods of tackling these challenges cannot be over emphasized if this Government is to survive its term in office free of rancor and unduly pressure.

In May 2011, after three legislative sessions that seemed unending – over a period of more than 11 years – civil society organizations and the media welcomed the signing of the Freedom of Information bill into Law. The Freedom of Information bill was signed into law on the 28th day of May, 2011 by former President Goodluck Jonathan more in his bid to secure the support and trust of Civil Society groups across Nigeria than of love for the letters of the Law. The signing of the bill was done without the apparent impact of its potential that was bound to create in relations to the attitude of Government to the people and vice versa – but rather a mere political sacrifice made to win hearts of pressure groups. The Freedom of Information Act (FOI) was thus, like a baby, conceived to appease a provoked husband, but not for the love of the husband or the baby.

The FOI seeks to grant access to any one – without limitations on citizenship, age or gender – to the records held by Government Agencies. Thus citizens can go to any Government Institution and request for information without any hold-backs. Whereas the FOI Act provides for certain exemptions to which an extent is drawn as to what information may be requested for – knowing that not all information is proper for public consumption – the Act primarily and fundamentally brings the citizens into the highest form of passive participation in Government. It holds no bars to Government accountability to the electorate.

The FOI provides for creating, organizing, keeping and maintaining of records by public institutions about their activities, personnel, operations and businesses – this is to facilitate easy public access to these records. As earlier mentioned, it has no bars to the persons who may request for any of this information. Thus irrespective of age, gender, race or status and reason whatsoever, a person is entitled to be granted information applied for. The FOI sets a limit of 7 days in which a public institution is to respond to such a request. It criminalizes the destruction of records and compels public institutions to PROACTIVELY DISCLOSE INFORMATION that is within its custody.

Failure to disclose proactively as required by the FOI is actionable in Court and could in deserving cases be categorized as wrongful denial of information.

The bodies that are bound by the Act include;

1. The three tiers of Government
2. The three arms of Government
3. Advisory bodies of Government
4. Boards and bureaus and committees of government supported by public funds
5. Commissions of the State
6. Private bodies providing public services and functions or utilizing public funds.

Each of these institutions is required under the FOI to create and maintain an FOI Unit to handle matters related to the implementation of the FOI. The Act mandates the public institutions to further build the capacity of their staff for its effective implementation through their offices.

The FOI importantly protects whistleblowers that make disclosures in accordance with the provisions of the FOI of illegalities going on within the public institution. It further makes possible the disclosure of information classified as secured under the Official Secrets Act.

In the bid to ensure optimum implementation and a detailed measure of the success of the FOI, it provides for the submission of reports by each public institution to the Attorney-General of the Federation, who in turn is to make a report, as submitted, available to the public and to the National Assembly.

Despite these hallowed and exciting freedoms guaranteed by the FOI, it is albeit sad that the FOI is more honored in its breach than in its observance. Compliance with its provisions by public institutions have been so far very minimal and consequently creating citizen apathy in taking advantage of the freedoms guaranteed therein, leaving them in the status of mere observers of governance.

It is of sad note that most Government Institutions have no knowledge of the existence of the FOI let alone knowledge of its provisions which bind them. And in the few instances where they do, they have not put in place the right mechanisms to see to the success of the implementation of the FOI within their boundaries. It is not far from the truth that one of the reasons for this ignorance is the mode and manner of prostrate passion in which it was signed into law.

Several other reasons may abound for the near underutilization of this law, but fundamentally, they are not far from the lack of advocacy and awareness, financial commitments, a strong and efficient structure for its implementation. For success to be achieved by the FOI in Nigerian public institutions, more advocacy and awareness would be needed. Also, the importance of strengthening internal structures of public institutions to facilitate the full implementation cannot be overemphasized; and of corresponding and consequential importance to all these is the requisite boosted financial commitment from the Buhari led Government to ensure the fulfillment of the spirit of the purpose of the FOI.

Government must make extra moves to ensure full compliance with the FOI beyond the present measure it stands on. The establishment of an FOI Unit in every public institution is imperative at this juncture to facilitate a full implementation of the FOI provisions. These FOI Units which are as required by the provisions of the Act would provide the requisite assistance to citizens in their requests for information.

It is of fundamental importance to the enforcement of the FOI that where there is wrongful denial of information or a breach of any of the provisions of the FOI, a citizen should be able to enforce his right in a Court of law. But this brings to play a very important issue; and that is the Court processes involved in this enforcement. In most cases, a writ of mandamus is sought for, or an order is sought by way of originating summons, in effect, asking the court to compel the authority to grant the request made. The matter is heard summarily and judgment is delivered after proceedings have most times taken a space of within four to six months. Compared to the average court processes and consequential proceedings, this time frame looks more appealing. Sadly, it truly is not. In most cases where requests are made, they are required for timely consumption by the requester. Now the question is; does a four to six month delay do injustice to the complainant? The answer is in the affirmative. Where such information is needed timely and is not granted until after a six month late judgment is made, it loses the value for which it was once passionately sought for.

There is also the issue of high cost of filing Court processes in the Nigerian Judiciary and the financial implications needed in paying legal fees for a lawyer’s appearance since it is a matter for a High court. It is no gainsaying that the amount spent to pursue matters in court is not one amiable to the common man of our society who the FOI should serve his interest equitably.

To cushion this worry, the Buhari administration must set up machinery for a more speedy hearing of matters bordering on FOI denial. A Special FOI Administrative Panel is keenly suggested for this.

The Panel would thus hear matters exclusively on FOI denials and would address same in the speediest manner with a time frame not exceeding a month. The manner of making such appeals to the Panel should be in the simplest form, devoid of all technicalities and discouraging processes. This would ultimately bring implementation of the FOI closer to the citizenry and the Government more transparent.

The importance of a Whistleblowers Act is of seasoned mention here. An Act to protect the divulgence of illegalities, irregularities and corrupt practices in government is most befitting for an unfettered implementation of the FOI Act. It would provide more adequate and detailed protection – beyond that guaranteed under the FOI Act – to persons who divulge illegalities taking place in public institutions. The truth is this, unit desk officers who are primarily staff of the Government Agency would mostly be afraid to divulge information that may be damaging to either the Agency or its Management without some form of guaranteed protection from persecution by their superiors or persons wielding power over them. A speedy passage of the Whistleblowers Act would come to the rescue to assail these fears, in fact with the coming of the President Muhammdu Buhari’s Administration, this will afford either the Executive or Legislative branch to seize the opportunity of a quick win in this area, particularly as the need for this Government to be transparent as a crystal glass is greatly desired to bring about true “CHANGE” and fight against public corruption and government waste.

The full and actual implementation of the FOI Act and the Whistle Blower Act will compliment President Muhammadu Buhari’s clear good intention of fight against corruption.

The fight against corruption is one that the entire citizenry of Nigeria must take ownership of if for the fight to be successful.

Aliyu Abdullahi, lawyer and maritime expert (naanamee and Johannes Tobi Wojuola, professional dispute resolution specialist (thisistobijay) wrote from Abuja.