The Yaradua Administration still smarting from the self-induced embarrassment over the Presidential resignation saga took yet another controversial decision by swearing all presidency cabinet members to an Oath of Secrecy.
Presumably, the Oath of Secrecy is to stop the information leaks from official quarters of official secrets including potentially politically damaging news of Mr. President's health condition.
It must be said without any equivocation that this new action is yet another Faux Pas: a big political blunder that has arisen from self-imposed political panic. What is even more baffling is that the hide and seek approach of the past did not prevent the spreading of the most wicked rumours about the President's health; is it then this “gag order” of the “Secret Order of the Presidency” that will eliminate damaging rumours about not only the President's state of health but various actions and policies of state?
Well beyond the political inexpediency of the Oath of Secrecy is its manifest illegality. A cursory look at the Constitution reveals that no part of the nation's Supreme law supports the taking of an Oath of Secrecy by any public official. None of the oaths prescribed in the schedules to the Constitution inclusive of the Oath of Allegiance qualifies for an Oath of Secrecy and several sections of the Constitution make it a ground of disqualification for a citizen who belongs to a secret society or cult to aspire to public office Sections 66(1) (g), 107 (1) (g), 137 (1) (h), 132 (1), (h) of the 1999 Constitution.
The Oath of Secrecy is reminiscent of the odious Oaths of Secrecy and Allegiance that cults and secrecy societies swear their members to.
In the mid 70s the military government of the then General Olusegun Obasanjo, in the aftermath of the great civil service purge was mindful of the grave dangers that allegiance to secret societies and cults can do the smooth running of public service and the productivity necessary of an efficient bureaucracy outlawed officers. At the time public officers had been required to openly renounce membership of secret societies, in addition to taking Oaths of allegiance to the Nigerian nation.
Ever since the nation's laws and Constitutions have continued in the tradition of outlawing membership of secret societies. Now that the Presidency has prescribed an Oath of Secrecy for public officers at the Federal level, is this not an open challenge to the nation's Constitution which the President and all public officers have sworn to defend and uphold?
The decision of the Supreme Court in A.G Federation V Atiku Abubakar (2007) 4 S.C (pt II) 62: where the central issue was whether the loyalty of the Vice President to his President was such that once he decamps to another party he automatically loses his seat, the Supreme Court held interalia that his loyalty was first to the Constitution rather than to the President and not any office.
Furthermore, every public officer including Mr. President holds office at the pleasure of the sovereign people of Nigeria by virtue of Section 14 (2) of the Constitution.
Thus the loyalty of all public officers is first and foremost to the Nigerian people, thus the Oath of Secrecy administered on serving public officers by the President is a direct challenge to the sovereignty of the Nigerian people.
It is also a fronted confrontation to the right of the Nigerian people to have access to information in line with Section 39 of the Constitution which the much desirable freedom of information FOI Bill seeks to enhance.
At yet another level the Oath of Secrecy reveals the level of opposition to the FOI bill not only from lawmakers but also from the Federal Government, so no one should be surprised about the sustained opposition to the passage of the FOI Bill.
Indeed, the new Oath of Secrecy will frustrate the National Assembly in the discharge of its powers to investigate the activities of government under its supervisory functions under Section 88 of the Constitution.
In the context of the law and the courts the new policy is reminiscent of the old common law under which the sovereign (King/Queen) was excused from giving evidence under the doctrine of crown (State) privilege as established in Duncan V Cammel Larrd (1942) Ac 624 by stating that such evidence was prejudicial to state security. The doctrine was later overruled in Conway V Rimmer (1968) ALLER 874.
In Nigeria despite the nation's common law heritage, our judges had always been uncomfortable with the idea of a blanket cover of State privilege to excuse a public officer from divulging evidence necessary to the just determination of a case.
In Queen V Administrator of Western Nigeria Exparts Bamgbala (1962) WRNLR 344, where Charles J. decided that in a case between two government agencies the claim of State privilege is not conclusive but it is to be decided by the court.
In Apampa V Balogun unreported decision. Aguda J. (as he then was); where the Commissioner of Local Government sought the exclusion of some documents on the ground that it would prejudice government interest, rejected the claim saying “ a litigant cannot be said to have had a hearing if the part of the evidence he requires is shot out and he is prevented from leading it.”
In Adeyemi V Western Nigerian Housing Corporation (1968) NMLR 66.
Olatawura J rejected the argument that the production of public documents showing how plots of land were allocated in the Ikeja G.R.A would prejudice public interest. His Lordship held that to such an argument meant government had something to hide.
The counts power should be excluded or not based on public interest or security was contained in Section 33 (II) of the 1979 Constitution and now Section 36 (4) (b) which provides that a Minister of the Government of the Federation or a Commissioner of a State satisfies a court that it would rest be in the public interest for any matter to be publicly disclosed, the court would exclude such evidence from the proceedings. This pro-active Constitutional Provision allows the court to check any Executive shenanigans aimed at covering up vital information under the vague “public interest and security” claim.
Indeed, the clause sought to be inserted in the FOI Bill by the Senate to exclude information on grounds of national security. Will even if inserted not be able to stand up to Constitutional scrutiny as the courts have the final say under Section 36(4) (6) of the Constitution as to what is in the interest of national security.
Oyegbemi (Editor Daily Sketch) V A.G Federation (1982) 3 NCLR 895. The bottom line however is that Oath of Secrecy is illegal and unconstitutional and cannot be deferred either on the basis of the official Secrets Act, a Colonial inheritance which is subject to Section 39 of the Constitution or the nebulous claims of national interest and security.
Post Script: In the light of the raging debate about the FOI Bill, this column will in the nearest future turn to search list on the full debate on the FOI Bill.
Presumably, the Oath of Secrecy is to stop the information leaks from official quarters of official secrets including potentially politically damaging news of Mr. President's health condition.
It must be said without any equivocation that this new action is yet another Faux Pas: a big political blunder that has arisen from self-imposed political panic. What is even more baffling is that the hide and seek approach of the past did not prevent the spreading of the most wicked rumours about the President's health; is it then this “gag order” of the “Secret Order of the Presidency” that will eliminate damaging rumours about not only the President's state of health but various actions and policies of state?
Well beyond the political inexpediency of the Oath of Secrecy is its manifest illegality. A cursory look at the Constitution reveals that no part of the nation's Supreme law supports the taking of an Oath of Secrecy by any public official. None of the oaths prescribed in the schedules to the Constitution inclusive of the Oath of Allegiance qualifies for an Oath of Secrecy and several sections of the Constitution make it a ground of disqualification for a citizen who belongs to a secret society or cult to aspire to public office Sections 66(1) (g), 107 (1) (g), 137 (1) (h), 132 (1), (h) of the 1999 Constitution.
The Oath of Secrecy is reminiscent of the odious Oaths of Secrecy and Allegiance that cults and secrecy societies swear their members to.
In the mid 70s the military government of the then General Olusegun Obasanjo, in the aftermath of the great civil service purge was mindful of the grave dangers that allegiance to secret societies and cults can do the smooth running of public service and the productivity necessary of an efficient bureaucracy outlawed officers. At the time public officers had been required to openly renounce membership of secret societies, in addition to taking Oaths of allegiance to the Nigerian nation.
Ever since the nation's laws and Constitutions have continued in the tradition of outlawing membership of secret societies. Now that the Presidency has prescribed an Oath of Secrecy for public officers at the Federal level, is this not an open challenge to the nation's Constitution which the President and all public officers have sworn to defend and uphold?
The decision of the Supreme Court in A.G Federation V Atiku Abubakar (2007) 4 S.C (pt II) 62: where the central issue was whether the loyalty of the Vice President to his President was such that once he decamps to another party he automatically loses his seat, the Supreme Court held interalia that his loyalty was first to the Constitution rather than to the President and not any office.
Furthermore, every public officer including Mr. President holds office at the pleasure of the sovereign people of Nigeria by virtue of Section 14 (2) of the Constitution.
Thus the loyalty of all public officers is first and foremost to the Nigerian people, thus the Oath of Secrecy administered on serving public officers by the President is a direct challenge to the sovereignty of the Nigerian people.
It is also a fronted confrontation to the right of the Nigerian people to have access to information in line with Section 39 of the Constitution which the much desirable freedom of information FOI Bill seeks to enhance.
At yet another level the Oath of Secrecy reveals the level of opposition to the FOI bill not only from lawmakers but also from the Federal Government, so no one should be surprised about the sustained opposition to the passage of the FOI Bill.
Indeed, the new Oath of Secrecy will frustrate the National Assembly in the discharge of its powers to investigate the activities of government under its supervisory functions under Section 88 of the Constitution.
In the context of the law and the courts the new policy is reminiscent of the old common law under which the sovereign (King/Queen) was excused from giving evidence under the doctrine of crown (State) privilege as established in Duncan V Cammel Larrd (1942) Ac 624 by stating that such evidence was prejudicial to state security. The doctrine was later overruled in Conway V Rimmer (1968) ALLER 874.
In Nigeria despite the nation's common law heritage, our judges had always been uncomfortable with the idea of a blanket cover of State privilege to excuse a public officer from divulging evidence necessary to the just determination of a case.
In Queen V Administrator of Western Nigeria Exparts Bamgbala (1962) WRNLR 344, where Charles J. decided that in a case between two government agencies the claim of State privilege is not conclusive but it is to be decided by the court.
In Apampa V Balogun unreported decision. Aguda J. (as he then was); where the Commissioner of Local Government sought the exclusion of some documents on the ground that it would prejudice government interest, rejected the claim saying “ a litigant cannot be said to have had a hearing if the part of the evidence he requires is shot out and he is prevented from leading it.”
In Adeyemi V Western Nigerian Housing Corporation (1968) NMLR 66.
Olatawura J rejected the argument that the production of public documents showing how plots of land were allocated in the Ikeja G.R.A would prejudice public interest. His Lordship held that to such an argument meant government had something to hide.
The counts power should be excluded or not based on public interest or security was contained in Section 33 (II) of the 1979 Constitution and now Section 36 (4) (b) which provides that a Minister of the Government of the Federation or a Commissioner of a State satisfies a court that it would rest be in the public interest for any matter to be publicly disclosed, the court would exclude such evidence from the proceedings. This pro-active Constitutional Provision allows the court to check any Executive shenanigans aimed at covering up vital information under the vague “public interest and security” claim.
Indeed, the clause sought to be inserted in the FOI Bill by the Senate to exclude information on grounds of national security. Will even if inserted not be able to stand up to Constitutional scrutiny as the courts have the final say under Section 36(4) (6) of the Constitution as to what is in the interest of national security.
Oyegbemi (Editor Daily Sketch) V A.G Federation (1982) 3 NCLR 895. The bottom line however is that Oath of Secrecy is illegal and unconstitutional and cannot be deferred either on the basis of the official Secrets Act, a Colonial inheritance which is subject to Section 39 of the Constitution or the nebulous claims of national interest and security.
Post Script: In the light of the raging debate about the FOI Bill, this column will in the nearest future turn to search list on the full debate on the FOI Bill.
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