By Wilson Uwujaren
Let me begin by appreciating the Media Rights Agenda for the invitation to be here this afternoon to address this important gathering.
I have been asked to speak on “The Role of Freedom of Information Laws in the Fight Against Corruption”. I believe my assignment is well cut out, which is to show how the FOI Act is being used or could be deployed as an instrument for fighting corruption.
Meaning of Corruption
Corruption has been variously defined. I believe we all have ideas of what corruption entails. For this interaction let us just say, corruption ‘is the abuse of public resources to private ends’. This is intended to suggest that the malaise is limited to the public sector which is not the case.
Before the FOIA
Before the FOIA was enacted in 2011, there were other laws designed to fight corruption. We have the ICPC Act 2000, the EFCC Act 2004, the Money Laundering Act and more. All these laws have been used and are still been used to fight corruption.
What then makes the FOIA special?
While the law enforcement agencies have responsibility for the enforcement of the other laws, the FOIA is a weapon in the hands of the people, to demand for and receive information.
The explanatory Memorandum to the Act states: “this Act makes public records and information more freely available, provide for public access to public records and information, protect records and information to the extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences of disclosing certain kinds of official information without authorization and establish procedures for the achievement of those purposes”.
The FOIA is intended to complement existing laws. I believe that with the law, Nigerians have in their hands, a massive weapon for inquiry and investigation that could illuminate several areas and issues in Nigeria’s public affairs.
Importance of FOIA
Historically, getting sensitive information from public institutions in Nigeria has never been easy. It is even more difficult when the issues in contention have fraud or corruption connotation. The inherent culture of secrecy in government, a function of our colonial heritage, makes public scrutiny difficult. Indeed, public officers in most departments of government are made to take oath of secrecy at employment which forbids the disclosure of sensitive information. There are other laws such as the Official Secrets Act that reinforces secrecy in the conduct of public affairs.
Between Secrecy and Corruption
This inherited culture of secrecy provides a perfect environment for corruption to thrive in Nigeria. Secrecy makes transparency difficult to achieve, while corruption blossoms in an environment bedevilled by the twin evils of secrecy and lack of transparency.
Those who pillage the nation’s resources do not do so in the market square but within the inner recess of their fortified establishments, away from preying eyes. And they draw comfort from the belief that such matters will never be fumigated because they are closely guarded.
Opportunities of the FOIA
A critical element of Nigeria’s anti-corruption programme is the clamour for openness and transparency in the conduct of public affairs. Access to information is at the heart of transparency and public accountability. This is where the FOIA is critical.
Section (1) of the Act reads: Notwithstanding anything contained in any other Act, Law or regulation, the right of any person to access or request information, whether or not contained in written form, which is in the custody or possession of any public official, agency or institution however described, is established.
The Section (3) of the same Act also provides that: Any person entitled to the right of information under this Act, shall have the right to institute proceedings in the court to compel any public institution comply with the provisions of this Act.”
Two things are critical from these provisions. One is the power of the citizens to seek information. Second is the opportunity for redress in the event of denial of access.
With the law, individuals and the media can demand for and receive any information or document from any agency of government. It opens the pubic space to greater scrutiny which should ultimately engender more transparency in the conduct of public affairs.
In this light, the greatest potential of the law is its capacity to encourage whistle blowing by ordinary citizens and groups, including the media.
The media and the Fight Against Corruption
A critical element of our country’s anti-corruption programme is an effective media. The media raises public awareness about corruption. The power of the media to expose corrupt acts goes a long way in reducing corruption in the country. If public figures know that their corrupt acts will be exposed by the press, they are likely to be more circumspect in their conducts. FOIA improves the capacity of the media to expose corruption.
Even without using the FOIA, the Nigerian media has performed creditably in exposing alleged acts of corruption. A few examples come to mind. Many of us will readily recall that the media brought the scandal in the aviation sector to light and sustained national interest in the episode until heads began to roll.
The matter of the missing billions in the oil industry is also being kept in the front burner by the media.
Like the media, the civil society has equally taken advantage of the law to request for otherwise sensitive information from government agencies. More importantly, is the demand for information made on anti-corruption institutions. This has the potential not only to improve the internal processes of those institutions and promote ethical conduct but reinforces their effectiveness and abilities to resist corrupt influences.
Not a few public institutions have set disclosure mechanism in motion by establishing FOIA desks. These are commendable responses.
The demand by some civil society groups for investigation into certain issues, including the threat of legal action if nothing was done are sources of added pressure on anti-graft agencies to respond to public yearnings regarding such matters. In a few cases, such pressures have triggered investigation or helped to fast track ongoing investigation in the overall public good.
Media attention and outcry by the civil society played a role in the investigation of the Farouk Lawan case, for instance.
Not yet Uhuru
These commendable efforts notwithstanding, the potentials of the FOIA are largely unexplored. The legislation remains largely untested. The FOI Act is not an end in itself. Freedom of Information like freedom of speech or any other freedom for that matter cannot be taken for granted.
We delude ourselves if we believe that the enactment of the FOI Act has cleared all impediments to access to information. Entrenched interest that have over the decades profited from the order of secrecy will naturally resists attempt to illuminate the realm of public expenditures for instance. And there are ammunitions to achieve this, even within the same FOI Act!
Sadly, the major impediment to the implementation of the freedom of information law in Nigeria is not from these quarters. My understanding of the implementation of the law in Nigeria is that there is high level of ignorance regarding its potentials and usage.
There is an unconscionable ignorance about the law and its potentials by those who are supposed to invoke its provisions. Only an insignificant number of journalists for instance know the provisions of the FOI Act. The greater majority simply know that a law exist that should make public bodies respond to their inquiries. How to go about making such inquiries under the law remains a mystery to them.
We cannot begin to talk about FOI Act as an anti-corruption tool in an environment of gross ignorance.
So the starting point in getting people, including journalists, to use the FOI Act is to improve their knowledge of the law, what it seeks to achieve, how practitioners can take advantage of it and the remedies available in the event of a denial of access to information.
I believe the NUJ have a role to play here in getting journalists to understand the FOI Act. It may not be out of place if the law is reduced into chewable bits for easy comprehensive by media practitioners and the public.
Persistence is key
The shift from a culture of secrecy to transparency requires a fundamental shift in the mindset among bureaucrats and the political leadership, and this will take some time. The key is to demand for the information and be persistent in the face of obvious denial. Even in more established democracies with better experience of implementation of the freedom of information law, investigative work under the law also do not come easy.
I do not intend to bore you with a recount of foreign experiences under the law but permit me to recall the request by Heather Brooke in the UK for details of the expenses of all 646 members of the UK Parliament. The request was made in 2004 but it was not until 2009, five years after, that there was a breakthrough when The Daily Telegraph obtained unedited details of all MP’s expenses. The scoop triggered a tsunami in parliament with the resignation of several MPs.
This experience underscores the challenges associated with invocation of the FOI law but it is worthwhile for journalists and others with the temperament and flair for investigation. It is time consuming, painstaking and requires a lot of patience.
There are exceptions to every rule. I am aware that all freedom of information laws is framed to exempt national security information from disclosure. In our environment, heightened national security concerns would naturally forbid the disclosure of certain information. Nigerians must be sensitive to this. Nevertheless, this concern must not become an alibi for non-disclosure.
The role of the FOIA is critical in the fight against corruption. Having the Act is not enough; it is essential to deepen public consciousness to this law and how it could be exploited under various circumstances.
The FOI Act can only complement the fight against corruption and economic crimes when it is effectively deployed by all stakeholders. Once again, I thank you for your efforts.
Uwujaren is Head, Media & Publicity Unit, Economic and Financial Crimes Commission (EFCC), Nigeria. He presented this paper at the Africa Regional Conference on Freedom of Information Implementation held at Reiz Continental Hotel, Abuja, Nigeria on March 18, 2014.