At least 16 states have been identified as wilfully violating federal laws that hold government officials accountable, nine years after the Freedom of Information (FOI) Act was passed.
The affected states are yet to domesticate the FOI Act or create comparative and parallel mechanisms that serve to promote transparency and accountability in government.
Nigeria’s Freedom of Information Act was passed into law on May 28 2011. The law was passed to enable the public to access certain government information and specifically to ensure transparency and accountability.
The 16 states include Imo, Anambra, Akwa Ibom, Edo, Osun, Ogun and Plateau, Kogi, Nasarawa, Niger, Kano, Sokoto, Bauchi, Adamawa, Taraba and Yobe
As part of ongoing investigations to promote tranparency and accountability in the public sector, PREMIUM TIMES and UDEME submitted 162 FOI requests across the 36 states of the federation.
The requests generated a pattern of excuses ranging from absence of organised records, additional clearance mechanism unrecognised by law and blatant denial of access to information except through governors’ approval. These are requirements unknown to the law in Nigeria.
Experts believe that states are taking advantage of conflicting judicial pronouncements to indulge in this bad behaviour.
Public interest lawyer, Femi Falana, a Senior Advocate of Nigeria, explains it thus:
“There are two conflicting judgments of the Court of Appeal on the applicability of the Freedom of Information Act in the states. One says that it is applicable throughout the country. Another one says that it is not applicable to states on the grounds that it is a federal enactment. Apart from Ekiti State which has a Freedom of Information Law, other state governments prefer to hide under the judgment of the Court of Appeal that says that the FOI Act is not applicable to the states.”
Mr Falana’s view is shared by Nkemdilim Ilo, the Chief Executive of Public and Private Development Centre (PPDC), an organisation noted for promoting transparency in the procurement processes.
She said one way to ensure the FOI Act is efficiently utilised across Nigeria “is when all stakeholders finally get to sit on the conflicting decisions of applicability of the Act at the state level.”
“If there are states that do not fit the category of the FOI laws neither are they part of the OGP (Open Government Partnership), that is now an open ended conversation because you now go to the Court of Appeal for the constitution that says the FOI laws does not need to be domesticated, that it should be applied universally. Although there is also a contrary Court of Appeal decision from another institution that says it is not applicable across board,” she noted.
Low FOI responses
In the past two years, the UDEME project distributed over 600 FOIs to Federal Ministries, Departments and Agencies (MDAs).
In this time, only 30 per cent of such requests were effectively treated and the information requested disclosed. The remaining were either ignored or acknowledged with no information provided.
In order for citizens to reap the dividends of democracy, federal, state and local governments must be accountable for how funds internally generated and/or received from the Federation Account (FAAC) are utilised, the experts said.
The monies donated by international organisations must also be well accounted for vis a vis infrastructural developments.
The UDEME project’s 2020 focus is to create awareness around the use of FOI as a tool for demanding accountability from the government and empower citizens with resources that help them interrogate the process.
Non-ratification and consequent non-compliance of most states is an obstacle in promoting transparency and accountability in the budgeting and capital projects execution process in the state.
“Monopolising the power to make information public negates the need for which the FOI Act was passed into law. And that is the need for openness, transparency and decentralisation of information from the side of the government to the people and thereby build trust which in turn makes room for good governance delivery,” said Idayat Hassan, Director, Centre for Democracy and Development (CDD).
“It is heart-breaking that in a time when other countries are looking for better ways to promptly disclose information to the public and pave the way for accountability and transparency, ours is hiding theirs (its) and asking that whoever wants certain information should institute a court proceeding to compel the institution to divulge the information needed. That is not right,” she said.
The Violators
In the UDEME’s FOI requests, nine selected MDAs in 17 states were targeted with similar requests.
These MDAs are State Universal Basic Education Boards, State Primary Health Care Boards, State Ministries of Education, State Ministries of Health, State Ministries of Water Resources, State Ministries of Local Government and Chieftaincy Affairs, State Ministries of Works, State Offices of the Accountant General of the Federation and State Ministries of Finance.
The 17 states are Imo, Anambra, Akwa Ibom, Edo, Osun, Ekiti, Ogun, Plateau, Kogi, Nasarawa, Niger, Kano, Sokoto, Bauchi, Adamawa, Taraba and Yobe.
The crux of the FOI request was to access the data on projects within the 9 MDAs implemented by state governments from 2016 till date.
These data include cash releases from 2016 till date as well as names of contractors, budgeted project amounts and status of projects. The responses were expected to provide insight into state governments’ contracting and procurement procedures.
Obstacles
The first challenge to the distribution of FOIs was the absence of updated contact information and addresses for state government parastatals on the internet. For state governments with visibility online, such as Kogi, Ekiti, Kano, Oyo, Edo, the contact addresses obtained failed to state where some of the MDAs are located.
Another challenge was the incessant change of nomenclature of state MDAs and parastatals.
Different administrations change the names of the ministries or collapse some functions to fit their vision. These often resulted in letters being returned and needing to be re-addressed and re-sent to the MDAs.
In terms of compliance to the Act, the Plateau State Universal Basic Education Board (PSUBEB), stated that it would be difficult to get exact approval of payments as different projects are treated daily by both the headquarter and the local governments.
The agency’s Legal Officer, C.Y Nanyap, said the board has no central database and as such, collating all information will be a herculean task.
“I will appreciate it if you can visit our office whenever you’re in Jos so we can show you how we operate,” he noted over the phone, adding “the Plateau State government is also committed to foster accountability and transparency in Nigeria and we are open for suggestions on how to make the process better”.
However, Nasarawa State offers a stark absence of coherence in its policy regarding the administration of transparency laws.
Whereas Doc Zax from the state’s Office of the Accountant General said that only the state ministry of works and the Nasarawa Urban Development Board have the mandate to implement projects, this view was not shared by Abdullahi Ogoshi from the state ministry of health, who said: “that only the state governor has the power to issue such a directive for the ministries to comply.”
Both Messrs Zax and Ogoshi’s positions stand in contrast with the 2019 comments of the state’s commissioner for information, Dogo Shammah, who assured citizens that the FOI Actwill be domesticated in Nasarawa State. Till date, that remains undone.
At the Ekiti ministry of health, Doc Alabi, a director, said the information requested is confidential and only the governor has the power to authorise the disclosure of such information.
“The letter should first be sent to the governor, and then he will give a go-ahead,” Mr Alabi noted, obviously a violation of Section 5(1) of even the Ekiti state Freedom of Information Law 2011, which states that the head of the government of a public institution has control over the record.
The document further stated that he/she shall, not later than 14 working days after receipt of application, give written notice to applicant if access has been granted or provide the requested information.
Meanwhile, in a response to our letter, the Edo, Kogi and Nasarawa state ministries of finance referred the outfit to their financial statements online.
‘Different, but opaque’
Bauchi provides a different but no less opaque scenario where ‘Harisu’ from Bauchi State Primary Health Care Development Board said that the Board must first give approval before any request can be processed.
These instincts to centralise information in political authority and away from citizens have drawn rebuke from scholars, civic leaders and legal experts.
Lai Oso, the former dean of the School of Communication at the Lagos State University, worries that governments all over the world are wont to manage the news and one of the ways is withholding information or releasing the type of information that will not damage their interest.
However, he insists that journalists and the civil society must continue to pry the boxes of secrecy. This view is shared by CDD’s Ms Hassan who adds that:
“It is totally inappropriate for us to pretend we have a functional FOI Act especially in a situation where only governors have the powers to give approval for the release of information to the public who pay with their taxes pay their salaries.”
Implication
Non-compliance to the FOI Act at the subnational level is a direct contradiction of Nigeria’s stated goals, especially as a member of the Open Government Partnership (OGP).
Where it may be difficult for citizens to comprehend happenings at the national level, transparency and accountability at state and local government level brings government closer to the people it serves.
It allows them to ask questions and make informed electoral decisions. It also guarantees that the dividends of democracy are delivered to citizens at the grassroots.
Kolawole Olaniyan, who is the legal adviser for Amnesty International in the United Kingdom and author ‘Corruption Human Rights’ says, “the FoI is so central and relevant to the fight against corruption because it is essential for actualising the people’s right to know, and for transparency and accountability in the management of public resources”.
Mr Olaniyan believes that the FOI can act as a check against incompetence, venality, or bias “as well as help to encourage elected officials to act in the public interest.”
According to him, “this, in turn, can stimulate more knowledgeable public consideration of transparency, accountability and human rights issues, and perhaps even encourage individual citizens to come forward with constructive suggestions. In sum, the FoI is without doubt a great victory for transparency and accountability in the country.”
Although he lauded the achievements so far recorded as a result of using the tool, he noted that the impact is “somehow limited”.
“The main problems include lack of effective implementation by MDAs, absence of political will at the highest level of government, and the argument by several states that the FoI is not directly applicable in their states without domestication. That argument is not backed by our constitutional jurisprudence, but the issue is still being tested in court,” he added.
- Story reworked by Segun Fatuase
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