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By Victor Emejuiwe
The Freedom of Information Act (FOIA) is made as an Act to make public records and information more freely available, provide for public access to public records and information, protect public records and information to the extent consistent with public interest and the protection of personal privacy, protect serving public officers from adverse consequences for disclosing certain kinds of official information without authorization and establish procedures for the achievement of these purposes and for relevant matters. The enactment of the FOIA was welcomed as panacea against secrecy and unavailability of critical public information upon which Nigerian citizens can hold government accountable.
There has been a debate in some circles as to whether the Freedom of Information Act (2011) is enough to guarantee Nigerians access to information on the declaration of Asset of public servants and political office holders. This became necessary following several cases in which the Code of Conduct Bureau (CCB), the constitutional custodians of declared assets, denied Nigerians access to assets declared by public servants. The Third schedule Part 1, section 3 (c) of the 1999 Constitution of the Federal Republic of Nigeria, (as amended) provides; that the Code of Conduct Bureau (Bureau) shall have power to retain the custody of asset declarations and make them available for inspection by any citizen of Nigeria on such terms and conditions as the National Assembly (NASS) may prescribe. The key words are “on such terms and conditions as the National assembly may prescribe”. This raises the poser; does the FOIA represent such terms and conditions as intended by the constitution makers?
The CCB is firmly of the opinion that the FOIA does is not the expected prescription of the National Assembly and that NASS has to explicitly refer to the CCB and the constitution before such a law meets the condition. This position has also been taken by some High Courts. It is imperative to state that the Constitution has already created a citizens’ right of access and what the NASS is required to do is prescribe the procedure and formality of accessing that right. If the position of the CCB were to be right, it means a constitutional right can be defeated by the failure of an arm of government to perform its duty.
Since 1999, NASS has failed, refused and neglected to specifically stipulate this procedure but did not make any distinctions when it enacted the FOIA and the declared assets are conveniently within the definition of public records and information. Furthermore, the Official Secrets Act disposition and mentality is a hinderance to citizens demand for accountability and probity in government. As a result, the spirit and intent of the FOIA is meant to address such denial of information and guarantee access to information that will promote accountability and transparency in governance.
In Section 1, subsection (1)- (2) of the FOIA, it provides that 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 any written form, which is in the custody or possession of any public official, agency or institution howsoever described, is established. (2) An applicant under this Act needs not demonstrate any specific interest in the information being applied for. With this provision, the CCB do not need any other guideline by the National Assembly to release information on asset declaration to the public.
In a written FOI request demanding for information on asset declaration of the President and his Vice, brought before the Code of Conduct Bureau, the Bureau rejected the request and also defended its self, insisting that the same FOIA gives it the power to deny the request. The Bureau cited section 14 (2)b of the FOIA. The sections provide that;
“Subject to subsection (2), a public institution must deny an application for information that contains personal information. personnel files and personal information maintained with respect to employees, appointees or elected officials of any public institution or applicants for such positions”.
This argument holds no water considering that the personal information has already been declared as information the public can have access to by the constitutional grundnorm which is the fundamental law of the land. Again, it should be recalled that the provision of S.14 (3) the FOIA provides that where the disclosure of information is in the public interest, the public interest outweighs the protection of privacy of the individual to whom such information relates. Pray, what is even private in declared assets of a public officer? Any public officer who feels uncomfortable making his declared assets public is not qualified ab initio to be a public officer. He can belong or lead a cult of secrecy but that is not the Nigerian law idea of public service.
Based on the foregoing, it is the fundamental right of citizens to hold government accountable and citizens must be provided with the requisite instruments and facilities to perform that oversight. What value is the CCN adding to Nigeria’s pro integrity and anti-corruption drive by sitting on those declared assets? The same CCB expects Nigerians to contribute by providing information to on the assets of public officers. How can someone without a knowledge of an opening balance contribute to a debate meaningfully on the closing balance.
Disclosure of information on asset declaration of public officials is an accountability tool utilized as a preventive measure against corruption. It is also important to note that all government positions and appointments are held in trust and the personnel must be ready to subject themselves for public scrutiny. The access to the declaration of assets of employees and appointees of government, is one of the tools citizens can use to demand for checks and balances on public officers. The Bureau has a mandate to make all FOIA request on asset declaration available to Nigerian citizens. This is in the overall best interest of Nigeria and Nigerians,
Emejuiwe, Program Officer (Good Governance), writes from Centre for Social Justice, Abuja
