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Analysis Of The Right Of Access To Information Under Nigerian Law

Law Project Topics and Materials

ABSTRACT

The Freedom of Information Act, 2011 (FoI Act) was enacted at the end of nearly two decades of public advocacy and exactly one hundred years after the Official Secrets Act was first introduced into Nigeria as a colonial Order-in-Council. This law is Nigeria’s major legislative response to redress the balance of official secrecy, elitism and non-accountable government. The aim of this research is to provide an in-depth analysis of the right of access enshrined in the FoI Act in order to create the awareness needed to promote effective implementation of the Act and assist Nigerians know how to utilize the provisions of the Act. There is the problem of a veil of secrecy pervading public institutions in Nigeria. The result is that journalists and the populace are denied access to information that is critical for accurate reporting and unraveling the web of corruption in Nigeria. Similarly, a research institute or student is unable to produce quality work because of limited access to relevant publicly held information. It was in order to correct these anomalies that the FoI Act was enacted in the first place. Further, several exemptions have been inserted into the FoI Act, which ought to be understood and given limited application and specific scope of application. Furthermore, certain secrecy laws in the statute books are obsolete and in dire need of review to make them conform to the FoI Act. These laws include the Official Secrets Act, the Evidence Act, the Legislative Houses (Powers and Privileges Act), the Criminal Code, the Oaths Act and the Federal Civil Rules. There is also the problem of the territorial applicability of the Act to states. Against this background, this research has made certain recommendations including: training and creating awareness to make public institutions acknowledge the fact that they are bound by the FoI Act and its provisions underlie their daily decision making with regards to information management; the secrecy laws and all regulations in conflict with the FoI Act should be reviewed to make them conform with the provisions of the FoI Act; public institutions and the courts, which are saddled with power of judicial review under the Act, should clearly and narrowly interpret the exemptions provisions under the FoI Act and subject them to strict “harm” and “public interest” test. The effectiveness of the right to access information would be undermined if the exemptions are given excessively wide interpretation. Otherwise, the objective for the passage of the FoI Act as a means of encouraging more open and inclusive governance process may be defeated on grounds of the exemption provisions.

CHAPTER 1 GENERAL INTRODUCTION

BACKGROUND OF THE STUDY

The Freedom of Information Act1 (or the “FoI Act”) is Nigeria‟s major legislative response to redress the balance of official secrecy, elitism and non-accountable government. It guarantees a “Right to Know” or a right of access to records and informationin the custody of public institutions in Nigeria; set standards for what the government could protect from access, and fastened a system of judicial review of denial of access to information.
In line with the requirements of the FoI Act, the Attorney-General of the Federation, who is vested with the statutory mandate to coordinate compliance with the FoI Act by public institutions,2has issued an advisory and a guidance note to help public institutions understand their obligations and promote good practice of the FoI Act regime. The advisory is titled the “Attorney General‟s Memorandum on the Reporting Requirements under S.29 of the FoI Act”3 (the “FoI Memorandum”) and requires public institutions to organise their records in a manner that makes them accessible to the public and to publish information using multimedia formats (i.e. print, electronic and online). The “Guidelines on the Implementation of the Freedom of Information Act, 2011”4 (the “FoI Guidelines”) seeks to aid clearer understanding, application and implementation of the FoI Act by public institutions.
The FoI Act was achieved at the end of nearly two decades of public advocacy and exactly one hundred years after the Official Secrets Act5 was first introduced into Nigeria as a colonial Order-in-Council. The idea of a freedom of information law for Nigeria was conceived in 1993 by three different organisations working independently of each other. The organisations, Media Rights Agenda (MRA), Civil Liberties Organisation (CLO) and the Nigeria Union of Journalists (NUJ), subsequently agreed to work together on a campaign for the enactment of a freedom of information Act.6 The objective of the campaign was to lay down, as a legal principle, the right of access to documents and information in the custody of the government or its officials and agencies as a necessary corollary to the guarantee of freedom of expression.

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