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Thursday, 20 November, 2008 12:51 pm
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| Senate waters down Freedom of Information Bill |
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| Written by Eze Anaba | ||||||
| Friday, 26 September 2008 | ||||||
     The Senate Media and Information Committee on the Freedom of Information Bill has whittled some of the provisions of the Freedom of Information Bill in a way that would make it ineffective if it is eventually passed into law. Most worrisome of the recommendation of the committee is the new section 2, which states that “Every citizen of the Federal Republic of Nigeria has a legally enforceable right to, and shall, on application be given access to any information or record under the control of a government or public institution or private companies performing public functions, provided the disclosure of such information or release of such record(s) shall not compromise national security and the applicant shall have satisfied a Stare or Federal High Court of the need for the disclosure of such information or release of such record(s). The caveat that the Senate Committee added to Section 2 of the report makes the FoI Bill dead on arrival if the Section is retained the way it is presently. Observers said the amendment it reverses the traditional role of the courts within an access to information regime, which is limited to serving as the final appeal mechanism for resolving disputes related to all aspects, processes and procedures for seeking access to information and/or records held by public institutions. “By reversing this role, as the Senate Committee proposes and making the courts become the first point of contact/decision making in any application for access to information, brings the court into the arena of conflict in the context of access to information related issues. By implication this takes away the possibility of the court being able to effectively play its traditional role of an unbiased umpire, in the events that either party resorts to judicial review of any decision taken by a public institution regarding an application for information in its custody. “Moreover, following from the Senate Committee’s proposal, at the point of the applicant securing this leave of court to file an application for information, there are still a lot variables that would not have been clarified without the involvement of the public institution concerned, e.g., whether the information or record in question actually does exists and if so, whether it is in the custody of the particular public institution to which the application is being made? Whether the content of record falls within any of the exemptions contained in the law, which may exclude the right of access of the applicant and this cannot be decided upon except the court is privy to the content of the particular record in question. Additionally, this new proposal places a very heavy, needless, mandatory burden on the applicant by requiring him to, as a condition precedent to the consideration of his application, first secure leave of either a State or Federal High Court, after satisfying the presiding Judge on the need for him to have the information or record being requested for. The applicant is also required at this stage, to convince the Court, that the information that he seeks would not in any way breach National Security, a point that is already covered by the exemption clause provided in Section 15 of the Bill,” the observer said. 2) Removal of the requirement that does away with the need for the applicant to justify his application for the information/record. Another very problematic amendment made by the Committee is the decision to delete the provision of Section 2(2) in draft FoI Bill which provides that “An applicant need not demonstrate any specific interest in the information or record being applied for.” This provision which was contained in the draft Bill was in keeping with the international principles recognizing access to information as fundamental human right and so an applicant requesting information should not be required to either justify or give reasons why he needs the record or information that he is applying for. The provisions of the Declaration of Principles on Freedom of Expression of the African Commission on Human and Peoples’ Rights adopted by the Commission in Banjul, The Gambia in October 2002 reinforce this position. This declaration stipulates amongst other things that; 1. Public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information 2. The right to information shall be guaranteed by law in accordance with the following principles: “ veryone has the right to access information held by public bodies; “ everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right; “ any refusal to disclose information shall be subject to appeal to an independent body and/or the courts; Consequently for the FoI Bill to meet the internationally accepted benchmark in this regard, this provision should retained in the Bill by the Senate, otherwise the Bill would fall short of the basic essential requirement of a good FoI law. 3) Extension of the time limit for considering applications both in the first instance and when an extension of time is granted. The Committee in its report also proposed an amendment to Sections 5(1) and 7(1) of the Bill by extending the number of days for considering any application for information from 7 days to 30 working days in the first instance and Ninety working days, in cases where the head of the public institution decides that an extension of the time limit for considering an application is appropriate. The net effect of a combined reading of the provisions of Sections 5(1) and 7(1) is that the total period for considering an application for information under the Bill is now 120 working days. This means that an applicant after crossing the hurdle of getting leave of court to bring an application for information to a public institution still has to wait for another 6 months before knowing if his application would be granted. If you add the time it took for the applicant to secure leave of court to bring his application, then it may all come up to between one to two years period The chilling effect that this time line would have on the effective enforcement of a right of access to information under such a difficult framework should be glaring to all, more particularly our distinguished senators, except if the plan is to deny the generality of Nigerians an effective legal regime on access to information. 4) removal of the need for the public officer to give written notice to the applicant on whether or not his application was successful. By deleting entirely, the provision of Section 5(1)(a) which makes it mandatory for a public officer to give the applicant written notice as to whether or not access to the information or record being applied for would be given, the Senate committee has effectively created a system that strengthens denial of access than approval. This is because the implication of this amendment is that the public official is not under an obligation to give the applicant any notification that would provide him with the reasons why his application was denied. This in turn puts the possibility of effective judicial review of such decisions in jeopardy as the court would have no evidence before it on the reasons that weighed in the mind of the public official at the time he took that decision. Additionally, it allows the public official sufficient time to cook up sufficient justification for the refusal that might not have actually been the case at the time he took the decision. The cumulative effect of all this, is that it creates room for the public official to act with impunity and leaves a dis-satisfied applicant without any possibility of securing any remedy whatsoever. Additionally, it is also instructive to note that deleting the provision of Section 5(1) also makes the entire provision of Section 8 unworkable and irrelevant, bearing in mind that the provision of Section 8(1) to (3) is predicated on the existence of the provision of Section 5(1). Consequently a very grave lacuna now exists which can only be corrected by re-introducing the provision of Section 5(1) back into the Bill. 5) Reduction in the term of punishment prescribed for public officers found guilty of destruction or falsification of records. Pursuant to what seems like a script to effectively frustrate the establishment of a robust regime on access to information, the members of the Senate Committee on Media and Information also deemed it fit to tinker with the provision of Section 11 of the Bill, by reducing the minimum term of punishment for destruction or falsification of records by public officers before they are released to members of the public from 3 years to 1 year. 6) Removal of all public interest override provisions contained in all the exemption clauses in the bill Nothing gives more evidence of the glaring intention of the members of the Committee to give Nigerians an FoI Law that is bereft of critical content and safeguards guaranteeing adequate balance of the various contending interests in the implementation of this law than the surgical operation that they did on the Bill by carefully expunging virtually all the public interest override provisions in the Bill, save for the one in Section 19(4) dealing with Third party protection. The full import of this exercise undertaken by the members of the Committee is that the Exemption clauses in the Bill are now sacrosanct and no longer subject to any public interest override and by so doing the Bill falls short of this globally accepted critical requirement for any legislation before it can qualify as a good FoI law. The fact that this a serious derogation from the international principles on FoI can also be seen from the declaration jointly issued on 19 December 2006, by Ambeyi Ligabo, the UN Special Rapporteur on Freedom of Opinion and Expression, Miklos Haraszti, the OSCE Representative on Freedom of the Media, Ignacio J. Alvarez, the OAS Special Rapporteur on Freedom of Expression and Faith Pansy Tlakula, the Special Rapporteur on Freedom of Expression and Freedom of Information at the African Commission on Human and Peoples’ Rights, where-in they all stated that; “Exceptions to the right of access should be set out clearly in these policies and access should be granted unless (a) disclosure would cause serious harm to a protected interest and (b) this harm outweighs the public interest in accessing the information. 7) Short time limit for filing an appeal for judicial review where an application is refused. While the Senators were quite comfortable with extending the time limit within which public institutions may consider applications for information and records, they were ill at ease to consider extending the provision of Section 24 of the draft Bill, regarding he time limit within which a dis-satisfied applicant could file for judicial review of a decision of the head of a public institution refusing his application for information or record. Consequently an applicant has only thirty days within which he can bring an application before a court to have a decision refusing him access to the record or information requested for, overturned, failing which he would be considered as being out of time to bring such an application. Except in special circumstances where the Court deems it fit to extend this time limit. 8) Deletion of section 31(2). Dealing with whistle blower protection The distinguished Senate Committee members also deleted the provision of Section 31(2) in its entirety. The importance of the provision of this Subsection cannot be over-emphasized, more particularly when considered in the context of Nigeria’s on-going anti-corruption crusade. Without this all-important protection for whistleblowers in the public service, the various anti-corruption agencies (EFCC and ICPC) would loose access to very valuable information and evidence that is currently provided by this group of people in the public service and this would negatively affect the effectiveness of the anti-corruption crusade.  Quote this article on your site | Views: 360 | Print | E-mail
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