FOI: THE CHALLENGE OF OFFICIAL SECRET ACT

Filed in Law by on August 29, 2011

FoI: The challenge of Official Secret Act
By KAYODE AJULO
Monday, 29 Aug 2011

David Mark

Despite new FOI Act, Nigerians may still encounter difficulties in accessing public records and information, writes KAYODE AJULO

If the request is to be turned down, the public institution must state the reason under the law. The refusal letter must contain the name, designation and signature of every official involved. However, if a court deems public interest to be more paramount in these instances, the information may still be made available to the applicant.

Nigeria has now joined the league of progressives behind such countries as U.K, U.S.A (2000) and India(2002).

The objective of the Act is to make public records and information freely available and to also protect public records and information to the extent consistent with the public interest and protection of personal privacy. The Freedom of Information Act also seeks to protect serving public officers from any adverse consequences of disclosing certain kinds of official information without authorisation, and to establish procedures for the achievement of these purposes.

So do you want to know how much Nigeria spends on importing petroleum products and who the contractors are? Simple. All you have to do now is write a letter to the Nigerian National Petroleum Corporation to request the information. Within seven days, you are entitled to a response. If not, you can take the NNPC to court and get an order to compel it to reveal the information. It may even get better: if any NNPC official attempts to destroy or doctor the records, he or she will be liable to a criminal prosecution, which may result in a one-year prison term. There shall be no liability for a public officer who makes the information available under the Act. The applicant is also not liable.

Welcome to the age of Freedom of Information in Nigeria where many files marked “top secret” by government officials can now be made available to ordinary Nigerians under the new Act.

The Act is expected to promote transparency and accountability in government. The benefits of the FoI is twofold- First, it grants freedom to the press to thoroughly perform their duties as watchdog since there is rapid access to information ; Second, the right extends to all citizens generally who have the right to access any official information privately and act on same without relying on the press.

Nonetheless, despite this beautiful victory for transparency, accountability, democracy and integrity, it would seem that it is nothing but pyrrhic victory! Why? Because a legislation called the Official Secrets Act would appear to be taking away with the left hand what the FoI has given with the right!

A plethora of laws prevents civil servants from divulging official facts and figures, notably the Official Secrets Act which makes it an offence not only for civil servants to give out government information – but also for anyone to receive or reproduce such information.

Further restrictions are contained in the Evidence Act, the Public Complaints Commission Act, the Statistics Act and the Criminal Code.

Prior to the passage of the FoI Act, virtually all government information in Nigeria is classified as top secret. This veil of secrecy makes it difficult to get information from a state agency. If you want useful information from a government department, you are told it is classified information.

So impenetrable is the veil of secrecy that government departments withhold information from each other under the guise of official secrets legislation. There are also instances where civil servants refuse to give the National Assembly documentation after being asked to do so.

The result of this is that journalists are denied access to information that is critical for accurate reporting, and unravelling the web of corruption in Nigeria. When you are in public office and have soiled your hands in the pot of corruption, you will try to prevent your being exposed by classifying as top secret documents that can implicate you. Students also find themselves barred from reading documents necessary for their research. In the name of official secrets, somebody sits on information that will benefit millions of people. In advanced countries, some of (these) pieces of classified information would ordinarily be found on the internet.

Following our colonial heritage and the long period of military rule, culture of secrecy which insulates governments and their actions from public scrutiny has become entrenched in the conduct of government business. Infact, Nigeria is one of the most secretive nations in the world. The government’s promise to run an open and transparent administration and fight corruption will remain a dream because accountability and transparency in government cannot be possible if government’s books are not open to members of the public, including the media.

It is saddening but the reality is that some Nigerians do not look up to the Nigerian media- print, audio or visual for information worth the name; why?

It is either you get outright false reports, half truths, speculations, misinformation, contradictory information or no information at all. In fairness to the Press and media, you cannot really lay substantial blame at their footsteps, their is just no way for them to obtain these crucial information and it is not that they do not try, they do of course but again the impregnable bulwark-classified information.

If these secrecy laws are not there, people will sit up. If you know the public will get access to your fraudulent acts you will not do it.

For example section 1 of Official Secrets Act, (Cap 03,Law of the Federation of Nigeria 2004), makes it an offence for any person to transmit, obtains, reproduces or retains any classified matter. The Official Secrets Act was established in 1962, shortly after independence, and government officials, including staff, swear by the act to keep all government transactions secret. The Official Secrets Act is often blamed for the obscurity in government transactions and ease of corruption in Nigerian government agencies.

Ordinarily, the idea behind these laws is to protect vital government information, but the level of secrecy is so ridiculous that some classified government files contain ordinary information like newspaper cuttings which are already in the public domain. This position is reinforced by the dawn of the internet. There is hardly any space or walls now in information. The world was shocked to its marrow when it woke up very recently to discover that Wikileaks had hacked into the official site of the UK government and splashed freely on the internet, information that was hitherto classified as ‘secret, official or confidential’. So which way forward for the FoI viz the Official Secret Act? The answer is simple.

First, the government should create an enabling environment for the implementation of the FOI Act by repealing the Official Secrets Act and all other laws in the statute books that inhibit freedom of expression and freedom of speech. The Judiciary should also create a favourable environment for adjudication on cases pertaining to refusal to disclose information as stipulated in the the FoI Act. The lawmakers of June 21 promised to amend or repeal the Official Secret Act which might hinder the FoI Act

The House of Representatives had said that it will, “without delay” review legislations containing provisions that are in conflict with the Act.

To begin with the Speaker, Aminu Tambuwal, had said that it is imperative for the House to urgently amend or “expressly repeal” the age long Official Secrets Act which many say would impede the implementation of the FoI Act.

Official Secrets Act is technically repealed

I here clearly state that it is desirable for the legislature to repeal or amend the official secret Act like it has promised and as logic and good sense dictates, but the truth are that whether or not the Act and others like it is repealed by the in the eyes of the law, the Official Secrets Act already stands repealed or at best amended!

The reasons for my position is manifold and clear.

First it is in direct conflict with Sections 28 and 29 of the FoI (Which I had earlier reproduced in italics) and the canon of interpretation is that where two statutes or laws are in conflict with each other, the latter prevails as the latter is deemed to have come into existence to correct the mischief and anomalies of the earlier.

Second, the FoI has constitutional flavour in the sense that it derives from and has its foundation from Sections 22 and 39 of the Constitution of the Federal Republic of Nigeria and section 1 (3) of the CFRN 1999 is clear on this that where any enactment is inconsistent with the provisions of the constitution, the constitution would prevail and that other law would be null and void to the extent of the said inconsistency.

In addition, judicial activism: the judiciary has always strived to find means and ways of giving purposive interpretation to the constitution and statutes to the end that societal good is attained and the aim of the drafters of any legislation is not defeated. The attitude is fairly represented by the view that the fundamental rights under Chapter IV of the constitution are sacrosanct and not liable to be abridged by any legislative or executive act or order, except to the extent provided in the appropriate section in Chapter IV of the constitution. Indeed, the fundamental rights guaranteed in Chapter IV of the constitution were specifically designed and intended to limit the powers of the executive and the legislature both at the national and state levels. This position has also been borne out by the several occasions when the courts have had to pronounce on “ouster clauses” fairly illustrate the point. The case of… is also apt. In that case the court declared as void the Public orders Act which required that citizens should get permit from Police before some lawful meetings, gathering and association as being in direct conflict with the constitutional provision of right to freedom of association and lawful assembly. In Shugaba v Minister of Internal Affairs (1981) 1 NCLR 25, where a High Court held invalid section 18(3) of the Immigration Act on the ground that it conflicted with section 38 of 1979 constitution.

The court also in Nwanko v State declared the law on sedition as obsolete, anachronistic and legally dead for being in conflict and contradiction of the constitutional right of freedom of expression.

Thus my view is that whether the National Assembly does the expected and desirable or not, the Official Secrets Act is already dead in the eyes of the law for the reasons aforesaid and the judiciary will scarcely hesitate to say so in appropriate cases.

Thus, it is my position that the Press should go ahead to invoke and enjoy the numerous benefits conferred by the FoI Act without giving the legislation called Official Secrets Act so much as a final backward glance. Press freedom, the world over has become the litmus test for democracy and the tonic for self and national development. It is not freedom to journalists alone. Press freedom is the collective enlargement of each citizen’s freedom of expression. Democracy is based on the sovereignty of the people and the public right to know is the essence of media freedom and its deprivation diminishes other freedom. Thus, press freedom is a sine qua non in a true democracy.

All over the world, a strong feature of a responsible and responsive government is its ability to enable the citizens and interested individuals to know the happenings in government and society and that information is not just a necessity, but an essential part of good government.

When a government is open, it is possible for citizens and stakeholders to participate in the decision-making process because openness has a great capacity to improve the quality of governance.

The press is in the fore-front of anti-corruption crusade, educating the populace on the scourge of HIV/AIDS, the campaign against political violence and thuggery, and the campaign against drug trafficking. The press again has the task of discouraging child trafficking; and it is in the crusade of anti-terrorist campaign.

If a man’s freedom of expression is stifled then because if he feels that he is prohibited from putting forward his views, then he may try to put his bottled or suppressed ideas into practice with resultant devastating consequences. In a similar vein, if people are not given access to truth because truth is shrouded in mystery, then it is a sure licence for untruths, speculations and half truths to reign.

Justice Adolphus Karibi-Whyte, once remarked that “The right to comment freely on matters of public interest is one of the fundamental rights of free speech guaranteed to the individual in our constitution. It is so dear to Nigerians and of vital importance and relevance to the rule of law which we so clearly treasure for our personal freedom” The right is constitutionally guaranteed. Professor Nwabueze (SAN) writes:

“The press is not an institution comprising special members. It is simply a vehicle, an organ for the dissemination of ideas or opinions to the public through the medium of printed words … the protection needed is not for the workers as such but for access to the medium by any person for the dissemination of information or ideas” Blackstone wrote “…Every man has undoubted right to lay what sentiments he pleases before the public to forbid this, is to destroy the freedom of the press…”

The press with this added advantage of FoI Act 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.

In one of the early decisions of the Supreme Court Of Indis in the case of State of UP Vs. Raj Narain and Others [(1975) 4 SCC428], the Supreme Court of India considered a question whether privilege can be claimed by Government of UP under section 123 of Evidence Act in respect of Blue Book summoned from the Government of UP and certain documents summoned from SP, Police, Raibareilly, UP.

The Court observed that – “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing.”

Ajulo, a lawyer, was the Labour Party’s candidate for the FCT in the April 2011 senatorial election.

-To be continued

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