Introduction

In a democratic society, the public is expected to have access to information; not only on how they are governed, but also on anything that is of interest to the individual or group. Democracy can function effectively only when the citizens are fully informed as to how it operates, and on what principles. Citizens need detailed and accurate data and information on the activities of government and public institutions to help them contribute meaningfully to the debate on appropriate strategies for socio-economic planning, growth and development. People cannot play their full part in society without access to information. They cannot exercise their rights and claim their entitlements without information, nor can they participate fully in democratic processes. Perhaps, because the weight of the above truth was felt, the Freedom of Information bill, which passed through a tortuous journey of 11 years, was finally passed into law in May, 2011.

The Freedom of Information Act (FOI Act) was received with open arms by the citizenry. It was a dream come true. As can be easily guessed, there was celebration across the length and breadth of the country. The FOI Act was seen to be a paradigm shift and turning point in our democracy. It was deemed to mark an enthronement of honesty, transparency, accountability and adherence to the rule of law in the conduct of government business and public services generally in Nigeria.

However, it is disheartening that the jubilation which trailed the passing of the Act was short-lived. The challenges impeding implementation of the Act range from outright and unsubstantiated refusal to delays in granting requests, among others. Unfortunately, the National Assembly which enacted the FOI Act itself was the first to refuse compliance with the FOI Act the very year (2011) it enacted into law. It refused to release to the Legal Defence and Assistance Project (LEDAP), details of the salaries, emoluments and allowances that were collected by national legislators between 2007 and 2011. Similarly, former President Goodluck Jonathan who signed the law defied the FOI Act, just some months after non-compliance by the National Assembly. The Socio-Economic Rights and Accountability Project (SERAP) filed a request for then President Jonathan to provide information on his assets declaration details between May 2007 and May 2012.Jonathan refused. He said: “...I don’t give a damn about it, even if you criticise me from heaven...”

Other refusals led to the institution of legal proceedings to compel public institutions to grant requests for access to information. Though there are many instances of non-compliance with the Act, but bringing them out is not within the scope of this paper. The aim of this paper is to examine the conflicting decisions of courts, and various opinions as to whether the FOI Act is binding on states.

An overview of the Act

Before justifying the assertion that the FOI Act is applicable in states, which is the fulcrum of this paper, it would be apposite to state briefly what the Freedom of Information Act is for the benefit of all, in case of those that are not conversant with the provisions of the Act.

The Freedom of Information Act is a law that guarantees the right to information and records within the control of public institutions to all Nigerians, regardless of age, class, or occupation. It is as well applicable to private institutions where they utilise public funds, perform public functions or provide public services. In simple terms, it gives every Nigerian the right to ask and receive answers to the following questions: How much is the salary of the President or ministers or governors or local government chairmen? What has government done so far with its budget? Where are the loots recovered by government’s anti-graft agencies? The building of the primary school in my village stopped since last year, why? When would they complete it? And many more questions, including request for copies of the completed assets declaration forms by public officers.

The applicant must not demonstrate any specific interest in the information applied for, and the application can be oral or written.

By Section 1(3) of the Act, an applicant who is refused information by a public institution can institute proceedings in court (either federal or state high court) to compel the public institution to release the information sought. The combined effect of sections 1(3) and 24 of the Act is that, the presumption of disclosure is in favour of the applicant, while the burden of justifying the non-disclosure of the information sought rests on the public institution.

By section 4 of the FOI Act, the information applied for shall be made available to the applicant within seven days. In the event that the government or public institution refuses the application, it must state the reason for refusal and the section of the Act under which the denial is made. The institution also has three days within which to transfer the request to another institution, if it discovers that another institution holds custody of the information/record being sought. In any situation where the information being requested is in a large number, the law provides an extension of an additional seven days.

Under section 7, the applicant has a right to challenge the grounds for refusal or to have it reviewed by a court. Under section 7(5) of the Act, if it is established to the satisfaction of the court that an access to information was wrongfully denied, the defaulting officer or institution will be liable, on conviction, to a fine of N500, 000.00. It is a criminal offence, punishable with a minimum of one year imprisonment with no option of fine, for any public officer or head of a public institution to willfully destroy any records kept in his custody or attempt to doctor or otherwise alter same before they are released to any person, entity or community applying for it. (See section 10 of the Act.)

It should, however, be noted that despite the beauty of the above provisions, there are certain information that may be denied. For examples: Information which may be injurious to the conduct of international affairs and the defence of Nigeria (see section11), information that will jeopardise pending proceedings or ongoing investigation/security of such public institutions (See s12), information relating to personal information and matters touching on personal privacy (see s14), information relating to professional privileges such as lawyer-client privilege, doctor-patient privilege, or other privileges conferred by law (see s16), etc.

It has been argued in some quarters that the exemptions are many. This tends to suffocate the right to access to information. With due respect, whether the exemptions are many or few is insignificant. Because, by the provisions of the Act, specificallysection 20 states: “Where an application for information has been denied on the ground that it falls under (pieces of) information that are exempted, the applicant can seek for judicial review of such denial.” Under this section (20), an applicant whose application for information has been denied may apply to the court for a review of the matter within 30 daysafter the public institution denied, or within such further time as the court may allow for the judicial review. It is humbly submitted that this is the most important section of the Act, as it allows a court to give an authoritative interpretation of any provision of the Act.

Finally, by virtue of Section 27 of the Act, whistle-blowers are protected. Thus, public officials who blow the whistle of failure of public duty, abuse of power, mismanagement of public resources or corruption are entitled to be protected against legal proceedings and from reprisals.

Application of FOI Act in states

Through the years, there have been controversies over the applicability of the law, especially by state governments in the country. In other words, whether the Nigerian freedom of information Act automatically applies in states remains an issue in courts, and subject of debate among lawyers. Already, there are more than two verdicts of Federal High Courts in Nigeria with coordinate jurisdiction, over the spread of the Freedom of Information Act.

While ruling in 2013 on an application seeking the Federal High Court, Ibadan to determine whether the FOI Act needs to be domesticated by Oyo State, before it becomes operational in the state, Justice Akinteye said the Act being an Act of the National Assembly “does not need to be domesticated by the 36 state Houses of Assembly before it becomes law in the state.” The judge ruled that the National Assembly had legislative competence to make laws for the peace, order, and good government of Nigeria that is applicable to all states of the federation, without infringing on the autonomy of the states, if such legislation was designed to correct a malaise plaguing the country. The Federal High Court, Enugu (April 2014) and Makurdi, Benue State (2015) reinforced this decision.

However, Federal High Court in Lagos, presided over by Justice Okon Abang, in February 2014, ruled that the Act was not binding on the 36 states of the federation. He asserted that the Act, being an enactment of the National Assembly, was only binding on the Federal Government and its agencies. According to Daily Trust, May 19, 2015, Sagay and Chief Robert Clarke, SAN, subscribe to domestication of the Act by states, for it to be binding.

Sahara Reporters, as well, reported on April 07, 2017 that the Adamawa State government dismissed, out of hand, a Freedom of Information (FOI) request for details on how it utilised the first tranche of Paris Club refunds it received from the Federal Government in December. The request was made by Mr Aliyu Hamman Tukur Gengele of Anguwan Fada, Mayo Belwa Local Government Area.

Those arguing that the FOI Act is not applicable in states impinged their contention on the following reasons:

The Act falls under concurrent legislative list

To others, is based on the “principle of mutual non-interference” in federalism.

Concurrent

By section 4(3)&(7)(b) of the Constitution, both the National Assembly and state Houses of Assembly have the vires to make law on items that fall under the concurrent legislative list. And issue of “public records” rightly fall under the concurrent legislative list.

Paragraphs 4 and 5 of part II, second schedule to the Constitution provide as follows:

4. “The National Assembly may make laws for the federation or any part thereof with respect to the archives and public records of the federation.”

5. “A House of Assembly may, subject to paragraph 4 hereof, make laws for that state or any part thereof with respect to archives and public records of the government of the state.”

If the National Assembly makes a law on any item under the concurrent legislative list, it automatically applies in all the states, except if the law itself provides that it should not. So, public record is not an exception. FOI Act is to automatically apply in all the states of the federation. Example, Economic and Financial Crimes Commission (EFCC) Act is established pursuant to section 15(5) of the 1999 Constitution, which both the state and Federal Government have power to make law on. Today, it is applied throughout the federation. Same with Independent Corrupt Practices and Other Related Offences (ICPC) Act; just like EFCC Act, it applies throughout the federation regardless of the fact that the power to make law on corruption is concurrent.

Uwais, CJN, in AG, Ondo v AG, Federation (2002) 9 NWLR (pt. 772)222 stated:

“The power to legislate in order to prohibit corrupt practices and abuse of power is concurrent and can be exercised by the Federal and State governments and being a concurrent power, any law made on the matter by The Federal Government Has Overriding Effect.”

However, if state legislates on an item in which it has concurrent legislative competence with the National Assembly, it is the law of the state that will apply, but subject to the law of the National Assembly. And in case of conflict between the two, that of National Assembly prevails. But in the absence of any state law on a subject matter, federal law must be applied. Therefore, in the absence of any state law, FOI Act must operate in all the states of the federation.

Federalism

The argument that Freedom of Information Act is not applicable in states based on the principle of mutual non-interference in federalism is at best academic and unfounded. As a starting point, there is no universal agreement as to what federalism or a Federal Government is all about. Definitions of words, including 'federalism' or 'federal government', by their nature, concept or content, are never fully accurate all the time. They always reflect the idiosyncrasies, inclinations, prejudices, slants and emotions of the person offering them. While a definer of a word may pretend to be impartial and unbiased, the final product of his definition will, in a number of situations, be a victim of partiality and bias. Point must also be made that no two countries operating Federal Constitution practice federalism exactly in the same way. All countries, including those operating federal constitutions, have their peculiar provisions, which they rightly call theirs.

In Olafisoye v. Federal Republic of Nigeria [2004] 4 NWLR (Pt. 864) 580, the court had this to say:

“Constitutions are named as federal, unitary and confederal, to mention the major ones. A federal government will mean what the constitution writers say it means. And this can be procured within the four walls of the constitution and the four walls only. Therefore, a general definition of federalism or federal government may not be the answer to the peculiar provisions of a nation's constitution, which is the fons et origo of its legal system.”

Coming back home, federalism is to be seen in the context of what the Constitution of the Federal Republic of Nigeria 1999 (as altered) provides. Federalism is a creation of the constitution, and it is the constitution that determines what federalism is.

It is conceded that in AG, Ogun State v AG, Federation (1982) 3 NCLR 168.The court actually held that National Assembly cannot unilaterally confer power or impose duty on a state functionary and it’s, of course, a correct statement of the General Principle of constitutional law in a federation, and is in accordance with sections 4 and 5 of the Constitution. Section 4 divides the legislative powers of Nigeria between the federation and the states.

However, in respect of application of the Freedom of Information Act in states, the question is: Can the National Assembly give powers or impose duties on state functionaries to comply with the FOI Act?

I think, before answering the question, it may be observed that although the framers of our Constitution enshrined therein the principle of division of constitutional powers between the federation and the component states, they realised that absolute division of such powers would not achieve the purpose of the Constitution which, as was firmly and solemnly resolved in its preamble, is to promote the good government and welfare of all persons in our country. It seems to me the framers appreciated that mutual co-operation, reciprocity and inter-dependence between the federal and state governments are essential in the promotion of the laudable purpose of the Constitution.

At this point, it will be necessary to examine, albeit briefly, the scheme of our Constitution. There are parts of our Constitution which specifically provide for the overlapping of authority. That is to say that the states are empowered to impose duty on federal functionaries, and vice versa. For instance, under section 215 (4) of the Constitution, the governor of a state or his commissioner may give directions to the State Commissioner of Police, who is a federal functionary. Furthermore, under section 286 of the Constitution state courts are vested with jurisdiction in respect of federal causes; and under section 287 (3) of the Constitution, the decisions of a state high court are to be enforced in any part of the federation, by “all authorities and persons.”

It accordingly follows that in character, the Constitution makes it possible for both the National Assembly and a state house of assembly to impose duty on or invest power in state and federal functionaries respectively, where there is an express or implied provision under the Constitution that gives the enabling power.

On this account, the provisions of paragraph 5 part II, second schedule to the constitution, which gives states house of assembly the power to make law on public records is qualified by the phrase: “subject to paragraph 4 hereof”, and the paragraph 4 deals with the power of the court to make law on same public records.

It is obvious from the foregoing that where there are express or implied provisions in the Constitution, enabling the National Assembly or states’ houses of assembly to confer function or impose duty on states or federal functionaries respectively, then the general principle of constitutional law stated in the dicta in Ogun State’s case above would have to give way to the express or implied provisions of the Constitution.

From the foregoing, any argument that FOI Act is not applicable in states based on the principle of mutual non-interference in federalism, cannot stand. While resolving similar issue in respect of ICPC Act, Uwais, CJN, held in AG, Ondo v AG, Federation (2002) 9 NWLR (Pt 772) 222 as follows:

“It has been pointed out that the provisions of the Act impinge on the cardinal principle of federalism, namely, the requirement of equality and autonomy of the state government and non-interference with the functions of state government. This is true, but as seen above, both the federal and state governments share the power to legislate in order to abolish corruption and abuse of office. If this is a breach of the principles of federalism, then, I am afraid, it is the Constitution that makes provisions that have facilitated breach of the principles. As far as the aberration is supported by the provisions of the Constitution, I think it cannot rightly be argued that an illegality has occurred by the failure of the Constitution to adhere to the cardinal principles which are at best ideals to follow or guidance for an ideal situation.”

Observations, recommendations and conclusion

It is humbly observed that the testing of the FOI Act in our courts is actually good for precedence and interpretation, but compliance with the clear provisions of the FOI Act is far preferable. Because the nature of our administration of justice system is so complex that litigation is slow and, therefore, takes time for cases to be disposed in court. And for litigants who may wish to appeal from a high court to Court of Appeal or even to the Supreme Court, there is a considerable monetary implication, which the ordinary citizens cannot afford. Of course, this will discourage citizens from making requests under the FOI Act. However, a willingness by government and public institutions to comply with the provisions of the FOI Act, without being forced to do so by the courts, is hereby recommended.

It is believed that in view of the decisions of the Supreme Court (AG, Ondo v AG, Federation (2002) 9 NWLR (Pt 772) 222 and Olafisoye v Federal Republic of Nigeria (2004) 4 NWLR (Pt 864) 580) cited in this paper with respect to the nature of our constitutional federalism, there will be less argument on application of the FOI Act in states.

•Oliver Chukkol is a student of the Faculty of Law, Ahmadu Bello University, Zaria. He can be reached via 08032470318 or email: oliverchukkol@gmail.com

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