The Special Rapporteur on Freedom of Expression and Access to Information in Africa (the Special Rapporteur) has issued an Advisory Paper titled ‘Ensuring Effective Implementation of Nigeria’s Freedom of Information Act (2011).
The Advisory Paper was prepared following the Special Rapporteur’s advocacy visit to Nigeria which was undertaken from 24 to 27 September 2018.
The Advisory Paper provides suggestions and recommendations which the Government of Nigeria (the Government) and other stakeholders should consider implementing to ensure full implementation of the Freedom of Information Act (‘FoIA’ or ‘Act’).
In the Paper, the Special Rapporteur stresses that access to information legislation enables the public to access information in the custody of public institutions and relevant private bodies, so as to entrench the culture of transparent and accountable governance. It is essential that freedom of information legislation be anchored on the African Charter on Human and Peoples’ Rights (the African Charter), as well as relevant normative instruments of the African Commission on Human and Peoples’ Rights such as the Declaration of Principles on Freedom of Expression in Africa, the Model Law on Access to Information in Africa, and the Guidelines on Access to Information and Elections in Africa.
In the Advisory Paper, the Special Rapporteur makes the following key recommendations which Nigeria should implement to ensure full realisation of the FoIA:
1. Official Secrets Act: The Government should repeal pertinent sections of the Official Secrets Act, including Sections 1(1) (a), (b), 1(2) and 9(1), to ensure compliance with the letter and spirit of the FoIA in respect of exempted information. It should also develop a system-wide process of reviewing and updating existing security classification systems for national security related public service documents under the purview of the existing National Security Agencies Act, to align such security classification systems with the provisions of the FoI. As well, it should recalibrate the oath of secrecy required of all civil servants to ensure it is not used or perceived as justification for declining requests for information or the proactive disclosure of information as stipulated under the FoIA.
2. Proactive disclosure: A service wide circular should be issued by both the Secretary to the Government of the Federation and the Head of Service of the Federation, directing all public institutions to henceforth take concrete steps to prioritise compliance with their proactive disclosure obligations under the FoIA.
3. Record keeping: Government or public institutions should have proper record management systems.
4. Training: Capacity building training on the FoIA should be conducted on a routine basis as opposed to on an ad hoc basis.
5. Creation of awareness: The creation of awareness programmes on the FoIA should be prioritised, and the Government should partner with civil society organizations for this purpose.
6. Accessibility of information: Information should be provided in accessible formats and in a manner that the public understands. Organizations, especially those in technical sectors, should set out information in a manner that can be easily understood by the public. Responses on information-requests should be expedited.
7. Resourcing: Freedom of information units in every Government organization should be resourced adequately so that they may execute their mandate under the Act. Additionally, organizations should ensure that freedom of information activities are mainstreamed in their mandated core business and/or activities, so that they may leverage on the already available funds to conduct various freedom of information activities as a matter of course.
8. Institutional framework for implementation of the Act: The Freedom of Information Unit in the Ministry of Justice should be strengthened by updating the existing Guidelines on Compliance with the Act. Further, institutions such as the National Human Rights Commission, the Public Complaints Commission, and the relevant Committees of Parliament such as the Committee on Reform of Government Institutions in the House of Representatives and the Committee on Judiciary and Governmental Affairs of the Senate, should be strengthened to effectively play their oversight role under the Act.
9. Applicability of the Act to States: States should enact or amend their freedom of information laws to conform to the provisions of the Act to ensure uniform national applicability.
10. Sanctions: The legal sanctions regime should be reviewed following consultations with stakeholders to ensure its effectiveness. Further, the Freedom of Information Unit of the Federal Ministry of Justice should, as part of its remit, routinely issue and publicise an annual table of compliance with the Act, and managers of non-complying institutions should be required to provide public accounting for their failings.
11. Streamlining the law/law review: The Government should expedite the review of the laws which are inconsistent with the provisions of the Act in order to streamline and optimize compliance with it.
12. Open Government Partnership (OGP): The Government should continue implementing the OGP Action Plan within the set timelines. Further, State Governments that sign up to the OGP commitments should enact robust and progressive freedom of information laws as a measure of the level of their commitment to the realisation of the objectives of the OGP framework.
13. Adjudication of information requests: The Government should establish special enforcement rules under the Act. The Government should also train and sensitize judicial officers on the interpretation of the Act and their freedom of information obligations, to ensure they are within the spirit of the law in their determinations.
14. Whistle-blowers protection regime: The Government should enact legislation to protect whistle-blowers fully and, in this regard, it may learn from other African countries such as Ghana, Uganda and South Africa which have enacted whistle-blowing legislation. The Government should also ensure greater synergies between the provisions of the Federal Executive Councils approved whistleblowing policy and policies on the same subject matter adopted by regulatory institutions, including the Pension Commission for operators within the Pension Industry, the Central Bank of Nigeria on the financial industry, the National Insurance Commission on the insurance industry, and the Securities and Exchange Commission for companies listed on the Stock Exchange.
15. Access to information and elections: The Independent National Electoral Commission (INEC) should mainstream the Guidelines on Access to Information and Elections in Africa in its work, and INEC could invite the Special Rapporteur to support this process. Additionally, the ECOWAS Network of Electoral Commissions should support electoral management bodies within ECOWAS on how to use the Guidelines to support elections processes in the sub-region. This includes working with the Special Rapporteur to undertake advocacy and capacity building programmes for such electoral management bodies.
The Special Rapporteur commends the Government for putting the Freedom of Information Unit in place at the Ministry of Justice, and stresses the importance of political will in order to implement the provisions of FoIA.
The Special Rapporteur thanks the Ministry of Justice of the Federal Republic of Nigeria for hosting him and his delegation during the advocacy visit. The Special Rapporteur also thanks all members of the delegation that accompanied him on the advocacy visit.
The link to the full advisory paper is: http://www.achpr.org/mechanisms/freedom-of-expression/Advisory-Paper-Nigeria-Freedom-of-expression-an-access-to-information/
Banjul, 04 March 2019
