In late October, this year, a Federal Court in Lagos ruled that the Freedom of Information (FOI) Act passed by the National Assembly is not applicable to the 36 states because it is a federal piece of legislation. In other words, state governments cannot be forced to provide information which theyare not prepared to give, which is the aim of the law. Justice Okon Abang gave the interpretation in a judgement in a suit brought by Legal Defence and Assistance Project against 6 states whose commissioners of finance and attorneys general had refused to provide information requested under the FOI Act .The states are Lagos, Imo, Abia, Rivers, Akwa Ibom and Delta. The formal request, dated December 12, 2011, specifically asked for details of funds raised and received by the respective states from the Nigerian capital market through public offers or private placements between 2007 and 2011.
However, in deciding against LDAP, Justice Abang said the FoI Act, being an enactment of the National Assembly, was only binding on the federal government and its agencies. He also held that the Act was neither a residual law nor was it on the concurrent list in the 1999 Constitution (as amended). He ruled that if it was the intention that the FoI Act should be binding on states, the Houses of Assembly of the 36 states of the federation should have been carried along in the process of its enactment. According to him, the state Houses of Assembly were empowered by the Constitution to make laws for their respective states, and not the other way round.
No doubt, the ruling is a major setback to a popular campaign to hold governments accountable to the people and strengthen the pillars of our democracy. Therefore, it must have come as serious shock to the NUJ, NGE, NPAN and civil society organizations that fought tooth and nail for the FOI Act. However, all hope is not lost. There is still a window of opportunity.
As suggested by Hon. Abike Dabiri-Erewa, a member of the House of Representatives and one of the sponsors of the FOI Bill, stakeholders should make sure the Act is effective at the federal first. As it is, there are many obstacles even at that level, not the least is the unwillingness of federal government ministries and agencies to set up FOI desks to make information readily available to those who need it. This is a requirement of the Act. There are enough dishonest deals taking place in the MDAs that require investigation, for example, the alleged disappearance of over $20 billion from NNPC account.
While we are at this, we should return to the drawing board to get the state Houses of Assembly to domesticate this all important law. It will not be easy, as agreed by NUJ president Mohammed Garba, but it can be done. Already 7 states have done so, according to him.