One of the most recurrent issues of national life since the return of civilian democracy in 1999 is the freedom of Information FOI Bill debate. The intensity of the debate wavers from time to time at certain times the debate is very intense like as at the present times, at other times, it fizzles out to almost a whisper.
The right to freedom of expression and the press has been part of the nation’s fundamental human right since the 1979 (2nd Republic) Constitution of the Federal Republic of Nigeria where it was part of the fourth Chapter of that constitution and specifically provided for under section 36 of that constitution. The right to Freedom of Expression was held in many decisions of the short lived 2nd Republic in Okogile V.A.G Lagos State (1981)2NCLR 377 the right to freedom of expression was held to cover all person and organizations, who may or may not have any connection with the press. Thus an institution such as a school set up for the dissemination of knowledge, information and ideas was held to be covered by the right to freedom of expression.
In Tony Momoh V Senate of National Assembly (1981) 1 NCLR 105, it was held that a journalist could not be compelled to disclose his source of information as to compel him to do so runs contrary to his fundamental right to freedom of expression. This principle was followed in the case of Representatives (1982) NCLR 394 and Olushola Oyegbemi V.A.G of the federation. (1982) 3 NCLR 895. The court went so far as to hold that “The purpose of section 36 of the 1979 constitution is not to erect the press into a privileged institution, but it is to protect all persons (including the press) to write and to print as they will and to gather news for such publication without interference. But it does not authorize any person to publish false news”
In the case of Chief Athur Nwakwo V State (1985) 6 NCLR 228, it was held that the law of sedition under section 51 of the Criminal Code derogates from and violates section 36 of the 1979 Constitution which gives the citizen the right to freedom of expression.
The right to freedom of expression like all other fundamental rights were expressly suspended under military rule which resumed on the 31st December 1983 by several constitution (suspension and modification) Supremacy Decrees enacted by each successive military regime. The lowest point in the enforcement of the right to freedom of expression was during the Gen. Muhammadu Buhari military administration ably assisted by his unsmiling Deputy Gen. Tunde Buhari promulgated Decree 4 titled Public Officer (Protection Against False Accusation) Decree of 1984. It was during this period that Messrs Tunde Thompson and Nduka Irabor both then of the Guardian Newspaper Limited were jailed for publishing information embarrassing to the then Government. Even the legal challenge mounted by the Guardian Newspaper Limited and the Nigerian Union of Journalist NUJ in Guardian Newspaper Limited, in cases such as Guardian Newspapers Limited V.A.G Federation, NUJ V A.G Federation, 1&2 reported in Nigerian Law of the Press under the constitution and the Criminal Law of pages C 230, C 256 and C 531 could not assist either of the two journalists from terms of imprisonment as they were both convicted in Federal Republic of Nigeria V Thompson & Irabor (Supra) at 518. Even when subsequent military administrations repealed Decree 4, the enjoyment of the right to Freedom of Expression (Information) was understandably nothing to write about given the predilection of military regime to authoritarianism and despotism. The press and various sections of civil society who attempted to exercise their inalierable right to express information about any matters of public interest were routinely arrested, detained, tortured and in many cases killed, the roll call of these patriotic include but is not limited to Chief Gani Fawehinmi SAN, Dr. Beko Ransome-Kuti, Mr. Femi Falana, Baba Omojola, Kunle Ajibade and several others, while those who paid the supreme price for expressing their opinion included Dele Giwa, Ken Saro-Wiwa, Kalttho Buguda and other martyrs of free speech. The return of Constitutional Democracy in 1999 brought with it the air of liberty and freedom to enjoy in full (within the limits of the law) the citizen’s fundamental including the right to freedom of information.
This atmosphere of liberty has now ignited renewed calls for a freedom of information starting shortly after the return of democracy government. This prompted a freedom of information FOI Bill to be sponsored in the National Assembly which Bill sailed through all legislative hurdles, 1st, 2nd and 3rd reading, committee level, public Hearing and was reaching for presidential Assent before the expiration of President Olusegun Obasanjo tenure. But the immediate past president rather than assent to the FOI Bill cited some minor short comings which needed to be corrected as the reason for withholding his assent to the Bill. This was the situation by the time the Obasanjo administration left and the Umar Yaradua’s administration came into office. By normal legislative procedure, nay Bill not passed into law by a particular legislative session must be commenced afresh from the very beginning - ab initio. However because of the great public interest the Fol Bill has generated the Bill has been fast-tracked under the present legislative session of the National Assembly. It has come up for debate before each of the 2 houses of the National Assembly. The Senate and the House of Representatives with the Fol Bill being shot down in each of the two Houses of the National Assembly in spite of the general impression that most Nigerians including the representatives of the people at National Assembly are in support of the Bill. The reality on the ground rather than the mere appearance is that a lot more or the nation’s leaders are against the Fol Bill than they readily admit in public. They make the politically correct statement that they are in support of the Fol Bill whereas in fact they are against the Bill and working behind the scene to kill it. Or how one explain the fact that while none of our lawmakers and public figures have openly denounced the Bill, it was overwhelmingly shot down at the House of Representatives and in the Senate where it is still on the legislative agenda the various modifications introduced into the Fol Bill, will if eventually passed make the Fol Bill dead on arrival or at best a toothless bull dog. Why? The Fol Bill under consideration:
(i) Permits a public officer from withholding information on grounds of national security.
(ii) Makes punishable, that is criminalizes any information which is false. Re-enacting Decree 4 under a Constitutional Democracy. It is instructive that this clause was proposed by the Senate President himself a retired military officer.
(iii) Requires a citizen who requires information from a public officer or public agency to approach the High Court/Federal High Court within jurisdiction to obtain such information. Is this not worse than the present situation, even where no Fol Act exists? Does an Fol Act containing these provisions in quality as an Fol Law?
THE GREAT DEBATE
Just as is the case with any debate there are two sides to the debate. The proponents of the Fol Bill and the opponents. Incidentally both camps will seem to fall into the two ideological groups that survived the post-cold war era, the progressives and the conservatives, with the proponents of the Fol Bill falling into the progressive camp and their opponents; the conservatives.
To be continued…
THE PROGRESSIVES
The provisions of the Constitution on freedom of information amount to nothing except an Fol Act exists to give light to it and no modern society can progress where citizens have no access to information as to how the nation is being governed by leaders who held power at the pleasure of the people.
Our leaders must realize that they hold power on behalf of the people by virtue of section 14(2) of the Constitution. They must therefore remain accountable to the people at all times by running a transparent system of government where citizens have access to information and can question their leaders actions and inactions including decisions. For so long, our leaders have carried on as being laws unto themselves without any responsibility to those who they are they supposed to serve. While that might have been tolerable under the military it is not at all acceptable in the present constitutional democracy.
The transparency that the Fol Bill guarantees is bulwark against maladministration and profligacy that has been associated with governance in Nigeria till date, which vices have crippled the nation from realizing its full potentials in spite of its over abundant human and material resources. Had a regime of Fol laws been in place and operational earlier the nation will not be in the sorry state it presently is. In fact any talk of fighting corruption will remain still-born as long as government and governance is shrovided in secrecy as the recently administered oath of secrecy by the President on certain members of the presidency.
The sordid tales of corruption, embezzlement of public funds and abuse of public office by public officers will continue to assail our sensibilities so long as an Fol Law does not exist.
Laws such as the official Secrets Act and the Law on seditious publications are colonial relics and have no place in a modern society, where the Fol law prevails. It is antiquated and unprogressive laws such as these, under which public officers hide that continue to provide cover for corrupt public officers to hide. The same also applies to most of the claims in official quarters of national interest and security. Usually these claims are mere cover ups for the shenanigans of self-serving and treasury looting leaders who have no desire to serve no one but their pockets and parochial self-interests. Where citizens including journalists overreach themselves by publishing false information that embarrass government or public officials the laws of libel are more than sufficient to deal with the matter. On the other hand where there is a threat to national security appropriate prosecution in a court of law, which can in one breath promptly check the threat to the nation’s security and in the other breath punish the offender upon conviction.
Nigeria as a signatory to several International treaties and conventions which have since been domesticated under section (2(2) of the constitution is merely paying lip service to its International obligations by refusing to pass Fol legislation. None of the several countries in Europe, America and the models of development that we desperately aspire to, is without an Fol law. The fear in some quarters that the Fol Bill is a journalist crusade meant to make ‘Super Heroes’ of journalist and the media is exaggerated and completely misplaced. The Fol Bill is a citizen’s law meant to guarantee the citizen’s access to information and thereby ensure transparency and accountability in government in the interest of the whole society. The Fol Bill is for all citizens and journalists are only in the vanguard of the crusade being better organized as a group than most other sections of civil society. The Fol Bill is a citizen’s crusade. Yours sincerely is an unrepentant member of the progressive group. But then it is only to listen to the other side-audit a terrain partum
THE CONSERVATIVES
The Fol Bill crusade is nothing short of a journalistic crusade meant to make Super Heroes and Untouchables of journalists and media practitioners. There is no need for the Fol Bill on view of the constitutional provision on freedom of presison and the press under section 39 of the Constitution. The Fol Bill even when passed is a law that will remain permanently inferior to the provisions of the constitution.
The Fol Bill even when passed is a law that will remain permanently inferior to the provisions of the constitution. The constitutional right has been interpreted liberally in the past, in cases such as
Tony Momoh V Senate (Supra)
Adikwu V Federal House of Representatives (Supra)
Oyegbemi V Federal A.G (Supra).
Indeed, in Okogie V A.G Federation, the court held that the constitutional right to freedom of information includes the right to operate schools and educational institutions.
In the last ten years several media houses have been opened all through the length and breath of the nation guaranteeing the citizens rights to reality, many of these houses whether in the print and electronic category in the purported exercise of their constitutional right to freedom of information publish false and damaging information about leadership and government. A classic illustration in the recent incident when a private electronic media house published a false story of the President intention to resign from office which story turned not to be false but caused considerable embarrassment to government.
Even as decided in the celebrated Oyegbemi V AG Federation case (supra) no one has the right to publish false news in exercise of his constitutional right to freedom of expression. Also as decided in Dokunbo Asari V Federal Republic of Nigeria (2007) 5-6SC. 150, the exercise of a citizen’s constitutional right is not absolute.
The issue of national security is particularly sensitive and no exercise of a citizen’s right including the right to public information should jeopardize national security as held in Dohunbo-Asari V F.R.N (supra) at page 183. Human rights of individual rights must be suspended until the National security can be protected or well taken of. This is nothing new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation, is certainly greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist.”
In that regard the official Secrets Act and the Law on seditious libel remain relevant and the need to maintain national security is paramount. These laws and considerations are in fact constitutional under Section 45(1) of the Constitution that requires a citizen’s right to be curtailed by law in the interest of defence, public safety and public order.
Even in those countries where the proponents of the Fol Bill refer to glibly like the U.S.A and United Kingdom, there has been a graphic curtailment of the citizen’s right including the right to information in the face of terrorist attacks like the September 11, 2001 attack in the U.S, and the 7th July 2005 attack on London in the United Kingdom through such laws as the Homeland Security Act and others. Indeed, Nigerian journalists do not need the Fol Bill to practice their investigative journalist by which several scandal and shady deals have been exposed; where was the Fol Bill when the press unearthed:
* The N2.8b oil scandal of 1978
* The $ 12Million Dollars Gulf oil windfall
* The Schneider scandal
* The Etteh-Gate, the present N2.8b House car scam
* and several other numerous scandals.
The Fol Bill is a clever attempt by the journalist parading themselves as speaking for the ordinary people to seek to be all powerful beyond control and should not be accepted.
Thus, the Fol Bill should either be shot down or so watered-down to deny it any potency after all journalism must be practiced with responsibility.
WAY FORWARD
Both camps come to the debate with formidable arguments, but if democracy is to serve the interest of majority of the citizenry who need to see the much touted individual of democracy in their life. If leadership is about service to the people to improve their lot, if leaders must be held accountable to the people if the affairs of the State are to be nun in a transparent manner. If leaders realize that power is transient and is only to be held in trust for the people and not to serve selfish and parochial interest. If we are interested in genuinely fighting corruption and abuse of public office which is the bane of our undevelopment as a nation and not merely pay lip service to the anticorruption – crusade to appear politically correct, then a true Fol Bill not the strawman Fol Bill presently in the Senate.
Indeed, the Nigerian people should reject outright the poisoned chalice of an Fol Bill presently before the Upper Legislative Chamber. To accept the Fol Bill as it is in desperation, will be double jeopardy, it will be on record that there is an Fol Bill in place yet the Bill will directly negate the Fol Crusade.
The concerns about national security is also misplaced in view of Section 36 (4)(a) (b) of the Constitution which allows the court to keep out prejudicial information under the doctrine of State privilege which has been upheld in several cases including R V Administrator of Western Nigeria Exparte Bamgbalu (1962) NRNLR 344 and Moronu V Benwn (1960) NMLR 66. Thus, the issue of national security can be solved by public officers who object to the given of a particular information applying to apply to the court and to the court that it would be adverse to national interest for him to disclose the information requested rather, the other way round as the Fol Bill in the Senate provides.
Finally, it must be under be understood that the Fol Bill is not a media Bill to confer special status on media practitioners but a sovereign people’s Bill to ensure transparency and good governance for the overall development of the nation.
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