By

Shimasaan Gbanger

Introduction

The Freedom of Information (FOI) Act came into force on the 28th day of May 2011 and immediately became one of the most important Nigerian legislation in modern times. The reason was simple – the Act recognises and respects a cardinal principle of democracy – freedom of information, which ensures openness and accountability on matters of public concern, thus, expanding the scope of the freedom of expression guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended)[1]. In Elukpo v Medical Director, FMC, Lokoja[2], the Court of Appeal held that:

The Act was enacted with the desired intention of making public records and information freely available to any interested members of the public. This no doubt is to expose public institutions to openness and accountability in respect of their basic dealings and decisions on issues of interest to the public. The Act in an ambitious manner prescribes in Section 1(3) that any person entitled to the right to information under this Act, shall have the right to institute proceedings in the Court to compel any public institution to comply with the provisions of the Act[3]

Section 1 of the Act establishes the right of “any person” to access or request information in any form “which is in the custody or possession of any public official, agency or institution howsoever described”. This is the case “notwithstanding anything contained in any other Act, law or regulation.” The information which may be accessed may be contained in any form whether written or not.

While it has been overwhelmingly applauded, one pertinent question which keeps resurrecting in the minds of many Nigerians is whether the FOI Act can be enforced against institutions of the State Governments. This is the question which this writer attempts to answer in this piece.

Applicability of the FOI Act to Institutions Controlled by State Governments

Towards the end of 2021, there was news of a lawyer who filed an application against the Ogun State Governor, contending that he had a right to a copy of the report submitted by the Judicial Panel of Investigation on Police Brutality and Extra-Judicial Killings, a panel set up by the Ogun State Government to investigate the circumstances surrounding the EndSars protests in the State. A brave move! We all thought. Was it the legally correct move? Doubtful at a glance. But who knows? The position may well depend on particular facts.

The question of the applicability of the FOI Act has been interpreted at various times in Nigeria. It was held on this principle in the case of Alo v Speaker, Ondo State House of Assembly & Anor[4] that “since 'Public Records' is a matter listed in the ‘Concurrent Legislative List’ the Freedom of Information Act, 2011 is…binding on all States of the Federation by virtue of the age-long Doctrine of Covering the field”

It appears this position was taken purely on the interpretation of ‘public records’ without more. A decision based on the entirety of the provisions of the FOI Act will be better appreciated. Thus, in a latter decision[5] the court distinguished the above position of law and stated that while the circumstances of the earlier case warranted such holding of court, it cannot be said in general terms that the FOI Act applies to establishments of state governments. It was based on this fact that in the case of Governor of Delta State v Olukunle[6], the Court of Appeal gave various reasons why the case at hand was distinguishable from the earlier case of Alo v Speaker, Ondo State House of Assembly & Anor.[7] The reasons were that:

1.      ‘Government’ as used in the FOI Act relates more to the federal government when one considers the totality of the provisions of the Act. In other words definition of ‘government’ under section 29 (9) of the Act excludes the applicability of the Act to the State Governments;

2.      The question of covering the field did not arise in the present case hence no such reference was to be made;

3.      Public institutions were mandated by section 29 of the FOI Act to submit a report to the Attorney General of the Federation covering the preceding fiscal year. This fact particularly was held to be obvious intendment of the Act to apply only to federal government controlled institutions because state owned institutions could not be expected to submit reports to the Attorney General of the Federation without recourse to the Attorneys General of the States.

Danjuma JCA went ahead to succinctly express the view that the FOI Act was at most persuasive and cannot run contrary to the express provisions of the Constitution. In his words:

Each component State does have powers under the Constitution pursuant to the concurrent legislative list schedule to make its laws relating to discoveries and demand of records, information, etc; and until and unless made, a State is not bound to supply or provide and an Applicant is, ipso facto not entitled, as of right to have such records or information. Where, he seeks and it is refused, there does not exist a justiciable cause of action. The FOI Act is, to me, therefore, a legislation of high persuasive value to States including Delta State and Local Governments but without any element of legal compulsion; rather it is a legislation of moral suave and colouration; as relating to State Governments...That being the case, the denial or refusal by a State or any of its Agencies of any information or document, cannot be compelled and to have as a basis the authority of this Act of the National Assembly.[8]

Oseji, JCA had stated earlier in Edosaca v Osakue & Ors[9] that the FOI Act, “though a noble and worthwhile piece of legislation, does not have automatic application to the states…”

While the position appears completely established that the FOI Act does not apply to States of the Federation or its institutions, certain questions have arisen from what looks like ambiguity of explanation. For instance, section 30 (3) of the FOI Act defines public institutions to include inter alia any institution or body of the government which is “supported in whole or in part by public fund or which expends public fund and private bodies providing public services, performing public functions or utilizing public funds;” Judging from this, what would be the scope of the ‘public fund’ mentioned under the Act? Does the fund of the State Government or local government not qualify as public fund? The phrase ‘public fund’ is not defined under the Act but Black’s Law Dictionary[10] defines it as “the revenue or money of a governmental body.”[11] The word ‘public has also been defined as “relating or belonging to an entire community, state or nation.”[12] If ‘government’ covers the three tiers of government, to wit – Federal, State and Local Governments, why should the FOI Act apply to one but not the remaining two?

Under the provision quoted above [section 30 (3) of the FOI Act], the definition of a public institution also includes “private bodies providing public services, performing public functions or utilizing public funds;” If a private institution falls within the definition of public institution for certain purposes, is it not rather appalling that the State Governments or their institutions which may properly be termed ‘public’ not come under the purview of the definition of ‘public institutions’?

Also, ‘court’ has been defined under the said section 30 (3) to include the High Court (of the State) or the Federal High Court. By section 252 (1) of the Constitution, the jurisdiction of the Federal High Court is to be determined only by the Constitution itself or an Act of the National Assembly. In a similar vein under section 273 of the same Constitution, the jurisdiction of the High Court of a State is to be determined by the Constitution or any law – which by implication connotes the law of the State House of Assembly. Thus, can an Act of a National Assembly legally confer jurisdiction on the High Court of a State without recourse to the State House of Assembly?

In addition, it is not under question that the legislative competence of the states under the concurrent legislative list has been mentioned but given the fundamental nature of the right protected by the FOI Act, would it not have been in order to enact it as an addition to the Constitution especially as a constituent of freedom of expression? Would the alteration not be good enough to empower both the Attorney General of the Federation and Attorneys General of States to exercise requisite power within their area of coverage instead of subjecting what seems broad to the whims of the Attorney General of the Federation alone? These questions need answers for a proper positioning of the Act.

Conclusion

From the above, our answer to the question of applicability of the FOI Act becomes obvious – the FOI Act does not enjoy automatic employment in the states of the Federation unless it is adopted by a given government of a state. Not even the doctrine of covering the field will aid an applicant in this regard. Perhaps, a Supreme Court position would differ but as it stands, the law is as stated by the Honourable Justices of the Court of Appeal.

However, efforts must be made to bring this Act in tune with the questions submitted above and expel the ambiguity especially that arising from the interpretation section. Alternatively, the constitution should be altered to insert the FOI Act as part of section 39.


[1] Hereafter referred to as “the Constitution”: See Section 39 thereof

[2] (2021) LPELR-53104

[3] Per Adah, JCA 6 – 7, Paras E - C

[4] Alo v Speaker, Ondo State House of Assembly & Anor (2018) LPELR 45143

[5] Governor of Delta State v Olukunle (2020) LPELR-51263

[6] Supra

[7] Supra

[8] See pages 32-33 Paras B-C; see also the case of Babale v FRN (2019) 1 NWLR (pt 165)

[9] (2018) LPELR-44157(CA)

[10] BA Garner, Black’s Law Dictionary 9th edn. (Thomson Reuters, 2009)

[11] Ibid p.743

[12] Ibid p.1348