AN APPRAISAL OF FREEDOM OF INFORMATION ACT IN NIGERIA
CHAPTER TWO
LITERATURE REVIEW
2.1 Introduction
Review of related literature is the process of exploring the existing literature to ascertain what has been written or otherwise published on chosen research topic, the previous research conducted and their impact on the present topic chosen.
It is in this light that the literature will draw inferences from materials relating to: right to access to government information, press freedom, journalism practice in Nigeria, perception of the freedom of information act: criticisms and defence, perceived importance of freedom of information law, FOI: tool for a true democracy and state of Freedom of Information in Africa among others.
2.2 Theoretical Framework
The Development (Media) Theory
This theory according to Nwanze (2003: 57) appears to have emerged in the second half of the twentieth century. This theory recognizes the peculiar problems faced by third world countries in Africa and Asia; problems such as illiteracy, tribal and religious loyalties etc. In such an environment, Nwanze argues that libertarianism may create controversy and confrontation.
According to the proponents of this theory, the press in such developing countries should highlight efforts at national development, speed transformation of society, economic and social equality, mobilizing the people for economic, social and political development and improvements in living standards.
Similarly, the development media theory was intended to recognize the fact that societies undergoing a transition from underdevelopment and colonialism to independence and better material conditions often lack the infrastructure, the money, the traditions, the professional skills and even the audiences needed to sustain media institutions comparable to those of the First World or Second World, in which the four theories could take root. It emphasizes the following goals:
1.The primacy of the national development task.
2.The pursuit of cultural and informational autonomy.
3.Support for democracy.
4.Solidarity with other developing countries.
This theory advocate media support for an existing political regime and its efforts of bring about national, economic development. By supporting government development efforts, media aid society at large. The theory argues that unless a nation is well-established and its economic development well underway, media must be supportive of government.
Nwanze (2003: 57) did note that “the major pitfall of this theory is that government and its officials will be too willing to take advantage of it to draw attention to themselves and highlight their achievements to their political advantage.”
Another criticism is that it is an updated version of authoritarian theory and that media should never surrender the power to criticize even if it risks causing the policies to fail (free-books-online.org/mastering communication/theories of communication…).
This theory is usually couched in development communication which consists of information about government plans and efforts to improve the standard of living of the populace; appeals to citizens to adopt new ideas and ways of doing things; news of struggles for a better living and news of achievements to spur or inspire the citizenry, appeals from government to citizens for co-operation and threats of force or punishment in the event of non-compliance (Udoakah, 2004: 7).
The aptness of this theory for the study is not lost in the researcher‟s perception that the emergence of the Freedom of Information Law in Nigeria provides a veritable platform that could engender and as well foster cordial government/press relationship which is germane to national development. Now, if governments have been seen to be creations of States with the responsibility to cater fro the good of the members of the State and it follows that the press is a product of technological advancement, made possible by governments for the good of the people, both, if guided by this consciousness can bring the needed good to society.
By this theory, there is an advocacy for a collaborative effort by government and the media to see each other as partners in the development project. This is not in the least sense canvassing that the media in this context be resigned to a lapdog but to live up to their responsibility of ensuring that the government provides the needed good to the State.The solution to injustice, oppression and inequality in distribution of State wealth lies not with the press but with good government and it is the responsibility of society to elect good government. If society allows any bad government to reign, it is the society‟s fault and the media is part of society (Udoakah, 2004: 25).
What this means is that the press should demonstrate their surveillance capability during elections to ensure that only suitable candidates are elected into political offices – leaders who see the development of the people as a priority.This is the first step to a good government. It is also at this point that the media who ideally are supposed to be social engineers can work effectively with government towards actualizing natural development.
2.2 REVIEW OF CONCEPT
Right of Access to Government Information
In the light of the Freedom of Information, Ogbondah (2003:128) wrote on the need for the law. According to him, “the need for the law arises because the 1999 Constitution of Nigeria does not guarantee the press and members of the public the right to access to government-held information. As a result of the absence of this type of law, a handsome volume of public affairs conducted in secrecy. Government records and documents belong to the people, should members of the public not be entitled to have access to their property?”
Also quoting President Lyndon, B. Johnson of the United State of America on July 4, 1996 when he signed the Freedom of Information Act,
Amadi (2004:36) did note that:
“This legislation springs from one of our most essential principle. A democracy works best when the people have all the information that the security of the nation permits. No one should be able to pull curtains of secrecy around decisions, which can be revealed without injury to the public interest.”
Yalaju (2001:261-262) notes “a popular government without popular
information or means of acquiring it, is but a prologue to a farce or tragedy or perhaps both.” Yalaju, quoting James Madison (1790) averred that:
“In the draft it is safe to hypothesize that the drafters intended partly to provide the citizenry access to information. This is to be expected for if we are to shape enlightened society about how we are to be governed. The citizenry is therefore expected to have access to information that would enable them evaluate the performance of the government.”
The beaming lacuna in our constitution is the absence of a specific provision for a free press. Like the United States Constitution, there was no original openness in the constitution with regard to citizen‟s “right to know” to affirm this right the American congress passed the Freedom of Information Act
(FOIA) in 1965 and has been amended several times. The decision-making Federal Administrative Agencies to the public, the Nigeria FOIA is intended to achieve the same purpose. From the above stated by Ogbondah, C. and Yalaju, J., it is imperative to note that the right of access to government information is very important as the constitution itself for the enlightenment of the general public especially the media. From Ogbondah‟s description, our government records and documents belong to us and we should not be restricted from knowing how things are being done, if there must be a transparent governance. We must be allowed access to the occurrence in the government. This is a typical example of what the media have been fighting for. There is no how the citizen will be held to ransom, by the secrecy of the government and yet be expected lie low.
Yalaju also emphasized it that “the citizenry is therefore expected to have access to information, that would enable them evaluate the performance of the government.” In this case, there is no how the Freedom of Information Act will function effectively in Nigeria if the above stated points are not put into consideration.
Amadi (2003:65) asserts that
“Freedom of Information Act in Nigeria is still a pawn in the political chessboard of Nigerian politicians… Such legislation in Nigeria may not be farfetched… such a powerful pro-media pro-people legislation will constitute an effective check on their venality… anything that takes off this veil can burst corruption in Nigeria. And that is why politician will continue to balk at it.”
Any government that wants to keep secret of their performance would not want the passage of the Freedom of Information Act. Dominick (2002:407) stated, “reporting the doings of the government can be a frustrating task if the government insists that information about its activities be kept secret.” Justice
P. B. Sawant in his presentation titled: “Media and Democracy: A Global
View” (32), noted that,
“It appears that out of 117 democratic countries, only 12 countries have a legislation ensuring access to government-held information. He further stated that if the media is to discharge its functions in democracy properly, it must have access to all authentic information from the primary sources, except the people themselves do not find interest in it.”
Judging from the fact that democracy gives a clear access to Freedom of Information and Nigeria practicing democracy is a great opportunity to pass this Act into law as that will grant the citizenry easy and quick access to government-held information else the government want to uphold to its secret code thereby ruling the people arbitrarily.
The Press Freedom
Press freedom in Nigeria has been lamented by many personalities
Amadi (2003:4) writes that
“There is a suspicion in Africa that a free press could lionize the ordinary citizen to the extent of causing a shift in the power base, this assumption is not groundless considering the contribution which journalism made towards the political decolonization of the Africa continent. It is on record that most of the socalled nationalists: Jomo Kenyatta of Kenya, Nnamdi Azikiwe of Nigeria, Kwame Nkuruma of Ghana etc. started their career as editors and publishers, the suspicion is traceable to the mistaken imagination that since a fettered preindependence press was able to remove the powerful colonial masters, that an unfettered post-independence press would be too hot for the new less powerful African masters to contend with.”
Although, there is no absolute freedom anywhere in the world especially that of the press, but then Nigerian constitution should promulgate a special right of the press and not generalized as stated by Yalaju (2001:91) that section 39(1) of the 1999 Constitution of Nigeria right of freedom of expansion and the press states:
“Every person shall be entitled to freedom of expression, including freedom to hold opinion and receive and impact ideas and information without interference.”
The seeming freedom of the press is guaranteed by statements of general principle as commonly expressed in the constitution of democratic countries. In Nigeria, the freedom has not been free as the word implies – able to act at will, not under compulsion or restrain, independent, not restricted. In spite of the constitutional guarantee the press has not bee free in Nigeria. This has made (democracy) life difficult, specifically during military governments.
Unlike Nigeria, the United States of America is the freest press in the world, the independence of their press is guaranteed by the first amendment which is very and reliable to enable the journalists win, during litigation. This fact did not deny the citizen their other rights when a journalist goes contrary in terms of libel invasion of privacy, trespass etc. although libel vary from State to State, none inhibit the press from reporting the truth. If Nigeria wants to emulate democratic system of government from America why not the full Freedom of the Press and Information Act which are evidence of a democratic set up, why over look the most important aspect of the democracy?
Ogbondah (2003:100-101) states that the law of independence, courage, objectivity and ethical principles on the part of Nigerian journalist can constitution a greater threat to Press Freedom even more than the enactment of obnoxious Press Laws by the State. The Ethical Code of Conduct of the Nigeria Press Organization enumerates eight ethnical principles that the Nigerian journalists must adhere to among other things the code says that “it is the duty of the journalist to refuse any reward for publishing or suppressing news or comments, other than salary and allowances legitimately earned in the discharge of this professional duties.”
Deutschland Magazine of February and March edition of 2000 (p. 3940) reported that one hundred and eighty-five countries signed the general declaration on human rights, yet in many of these countries, Article 19 of this declaration, which refers to the right of Freedom of the Press and of opinion is still not completely observed. The worse is the fact that at the current time, over 700 journalists, writers and publishers around the world are in prison for insisting on their right to put their opinion into writing. Freedom of the Press is prerequisite for good and just governance and for effective social development, the right to knowledge is reliant on the free flow of information and ethical aspirations. Press freedom is an integral part of that basic right to which all men and women are entitled.
Udoakah (2001:102) emphasized,
“More often than not, African is castigated by the West as a continent without Press Freedom. The issue of Press Freedom is a twin question of how a society should be governed. Patterns of press control are considerably influenced by the political belief of the societies concerned, these are commonly identified as the authoritarian, libertarian, social responsibility and the Soviet theories.”
It is imperative to note that Freedom of the Press as l have just mentioned above has never been absolute but Nigeria still has to proffer solution to a specific provision for the Nigerian press to enable them discharge their duties creditably and objectively without let or hindrance.
Journalism Practice in Nigeria
Amadi (2003:24) noted,
“In Nigeria where the mainstream electronics media are almost exclusively owned by the government and just very few privileged collaborators, the bug of lay and hierarchical control are common to the extent that radio and television station mangers who engage in any manner of independent editorial initiative are quickly whipped into line with either suspension, outright sack or both.”
The Nigeria journalists have suffered a great deal in the past, especially during the military era, which is the more reason why Nigeria Guild of Editors and Media Right Agenda have been fighting for the enactment of the Press Freedom and the Freedom of Information Act (FOIA).
Yalaju (2001:33) stressed its need that “the press should have the right to write, inform and educate the public without fear of censorship, intimidation, molestation or restraint to personal liberty of the writer, subject only to existing laws.” The absence of the above laws has really impeded the objectivity, independence; courage of the Nigerian journalists any little mistake could lead to jail or sack. Emeka (2001:32) stated, “the absence of Press Freedom in any country could also constitute the lack of independence, courage, objectivity and ethical principles on the part of the country
journalists.”
Nigeria being a democratic state, there should be a free press to enable the journalists carry out their functions objectively and freely without interference. Ebere (2001:22) stated, “it is essential to a few salient points that ought to define the relationship between the government and the press. A free press is an essential ingredient of democratic governance, hence the objective of the government and the press are different and therefore the existence of tension between both parties cannot be upheld, such right also carries a corresponding responsibility to publish professionally.” Although journalists have shown, from time to time certain imperfections in their work, and so my view is that a bad government is far worse for their people than an
irresponsible press.
Perception of the Freedom of Information Act: Criticisms and Defence
The Freedom of Information Act, one which seeks to make public records and information more available and there is an appropriate need for the management of some vital State information. In the process of passing this Act into law, different persons or institutions have different perception about the existence of the law enacted. The controversy lies here: Yalaju (2001:84, 269) stated, “it would seem that government is afraid of criticism, hence the restriction on Press Freedom and Information Act Law”. Yalaju again it has
been correctly observed that:
“Freedom of criticism is what government fears”. Also quoting Lenon‟s explanation, “Freedom of criticism is undoubtedly the most fashionable slogan at the present time, and the one most frequently employed in the controversies between socialists and democrats in all countries.”
Collins (2003:33) noted that:
“A right of access of officially held information would inevitably enhance good governance transparency, accountability and people‟s participation in government, but the great fear of the government lies in the criticism of their secret fraud. In revealing the criticism of their dark deeds.”
This has been a hindrance to the passage of the Act into law. Another criticism or hindrance to the effective use of the law is the fact that some parts of the constitution have to be expunged or repealed upon the passage of the Access to Information Act.
This Act as in other jurisdictions (USA) was originally championed by the media to allow them expose the shortcomings of the government that would be hidden:
- Section 3(a) and (b) of 1999 Constitution.
- Official Secrets Act No. 29 of 1962 and Official Secrets (Amendment) Act No. 30 1962.
(c) Defamatory and Offensive Publication, Act 1960.
(d) Printing Press Regulations Act 1964.
€ Section 58 of the Criminal Code Act of 1958 (Power of Prohibit Importation of Publications).
(f) Section 59 of the Criminal Code Act of 1958.
(g) Section 51 of the Criminal Code (sedition).
(h) Treason and Treasonable Offences Decree No. 29 of 1993.
(i) Newspapers (Amendment) Act of 1964. (Ogbondah, 2003: 131)
In photocopy fee, Ogbondah (2003:132) emphasized “information requesters should not pay more than the current photocopying rate at business centers.”
These are the challenges the Law will face today, because our government officials would always use that to stop most journalists or public from getting the said information as they would not want to abide to the stipulated law, or as suggested by Ogbondah and thereby creating a lacuna for the access to the information, meaning the law may not be effectively practiced as that of the American first amendment and the Freedom of Information Act of Section 39.3(a) and (b) of the American Constitution.
Perceived Importance of Freedom of Information Law
The Freedom of Information Act is not meant to witch-hunt government and public officials, but to provide the foundation for an open system of governance and consequently an open society, which will be for the benefit of all sectors of the society, including the government. Devasher (2006:16) explains that “a Freedom of Information Law can bolster the effectiveness of development and poverty alleviation strategies”. Devasher attributed some failure in development strategies to “non consideration of citizens input to whom such policies are targeted.”
Access to information makes government more sensitive and responsive to the needs and demands of the ordinary people. A Freedom of Information Law increases public participation because the public can regularly engage with government officials and parliamentary representatives which can be crucial to national stability. Information sharing and openness help bolster public trust in the political system, by establishing a two-way information flow between citizens and the State. Devasher (2006:1) advocates that “such dialogue can combat feelings of exclusion, fear and victimization and reduce the risk of agitation of marginalization.” According to Egba (2008:11), the Act would among other things:
•Promote the oversight role of the National Assembly, by facilitating access to public documents and information necessary for the work of the National Assembly and its committees.
•Improve the record-keeping practice of public institutions. It will ensure that government records and documents are properly kept and reasonably guarantee the integrity of such records and documents.
• Enhance the realization of the economic reform agenda of the Federal Government as provided for in the National Economic Empowerment and Development Strategy (NEEDS) document, which provides for the adoption of an access to information law as flagship legislation required for its successful implementation.
• Promote transparency and accountability in governance as government policies and activities will become more open and available to the public.
• Ensure that government institutions work better and more efficiently as public institutions become aware that their decisions will be made public and have to be based on objective and justifiable reasons.
• Enhance participatory democracy in Nigeria, enabling citizens to make informed decisions, promote compliance, monitor distortions in policy implementation, and where necessary, improve the quality of
governmental decisions and policies. This possibility in itself will give citizens a greater sense of belonging and ownership and ensure public confidence in the government and
• Complement and enhance the anti-corruption legislations of the Federal Government (including the prohibition and punishment of Bribery Act; the Code of Conduct Bureau Act; the Independent Corrupt Practice and Other Related Offence Act, 2000; the Economic and Financial Crimes Commission Act, etc.) as accountability and transparency in government cannot be possible if citizens have no right of access to information held by State or its agencies and do not consider themselves as stakeholders in the fight against corruption (The Guardian, 2008:11).
In a nutshell, Freedom of Information Law would make government more accountable, increase public participation, promote the involvement of all in public life, make private companies more accountable, monitor and expose corruption, lead to better decision-making, protect privacy, expose human rights violations, and promote worker‟s rights as well as make the country
more secured (visit http//www.pambazuka.org).
Good governance as an essential component of any thriving democratic state is premised on a system of openness, trust and government accountability. This can only be achieved if the public is involved in the process of governance. If the general public knows the functions, policies and decision made, they can question the government on the basis of the information obtained, and most importantly, the reasons for the government‟s actions. Government needs to demonstrate its commitment to a people-oriented democratic programmes and legislations by adopting a Freedom of Information Law that is strong and effective.
FOI: Tool for a True Democracy
Democracy is described variously as the rule of, for and by the people; and as a regime where the rule of law is enacted by the people and none is above the law. Sawant (2000) sees democracy as “government by debate and discussion of the people and not a rule by arbitrary will and whim or dictate of an individual or of few individuals.” Whatever the definition may be, one obvious fact is that, it is the people that constitute the foundation of a democratic polity. The hallmark of true democracy is equal freedom and right of the citizens to contribute in decision-making and policy implementation.
Freedom of Information Law is an attempt to legalize the principle of free access to government information: to ensure accountability and transparency. Without FOI, governments or administrators might withhold information that would lead citizens to vote them out of office. With freedom of information, citizens need not rely on information from leaks, often unreliable and the result of media management or whistleblowers that run the risks of losing their jobs and face prosecution (Davasher, 2006:21).
In a study conducted by Patricia Lee Sykes and Susanne Piotrowski in 2004 to review the history of FOIA in US, Australia and the UK; the acquisition of greater authority by the Presidents and Prime Ministers, and the failure of the elite to act responsibly, strengthened the case for greater democratic accountability hence, fueled calls for greater openness in government and set the stage for the introduction of FOIAs. The study reveals that:
“ …with the growth of the modern welfare state, government began to affect more people, and they demanded more information from government. Issues concerning citizen‟s right and entitlements sparked public debates. Then, starting in the early 1960s, protest movements encouraged greater “power to the people”. As the 1960s progressed, people grew increasingly skeptical of official information and credibility gaps emerged in all the three countries (www.allacademic.com).
The study has it that increased executive power shifted the focus of lobbyists from the legislature to the executive, and pressure groups demanded more information from incumbent administration and governments. The long periods of single part rule, apparent in Australia and UK, produced the corruption that frequently comes when one party has been in power too long. Civil servants also started to support FOIAs as whistleblowers increasingly faced the prospect (and in UK the reality) of prosecution. The study confirms that by supporting FOI legislation, citizens in all three countries have shown that they prefer to enhance democratic accountability rather than rely on elite responsibility (Australian Standard ISO 15489, 2001, www.archives.gov).
In Nigeria, it is obvious that inspite of the long awaited democracy, our representatives in the National Assembly and other stakeholder in the nation‟s polity could not actually demonstrate their reasons for condemning military government by adopting a more strong, effective and practicable legislations for an open democracy to be instituted. Incessant rejections of the proposal in the National Assembly are very sad and have contradictory commentary on Nigeria‟s democratic experiment (Fela, 2008:54). Fela did note that amongst the benefits of the law as enacted, is to remove the ambiguity showcased by the colonial law of “Official Secrets Act”.
The FOI law would make governance and development become very participatory and accentuate the realization of that crucial ingredient of democracy – holding the ruler accountable to the ruled. Fela (2008) adds that the spirit behind the Act in Nigeria is to “institute the culture of accountability and ultimately eradicate the festering sore of impunity debasing the Nigeria social landscape” (Daily Triumph, 2008).
From the review of the above study, Nigerian labours both private and government enterprises need to have attitudinal change and adopt a more conscious, patriotic and selfless agitations for what is right. Since the „waterdown‟ of the FOI Act, it is only media practitioners and media owners that showcase their reactions to the Act, resulting to speculations by the parliamentarians that the Act is the media Act. Civil servants that constitute the major workforce in Nigeria were never reported to have carried out a peaceful demonstration to the National Assembly in support of the Act. Such move would have made our representatives to see the Act as citizen‟s Act rather than the media Act.
State of Freedom of Information in Africa
The World Library and Information Congress held in August 2003 in Berlin, reviewed the state of Freedom of Information in Africa, and concluded that Africa has not fared well in the area of Freedom of Information legislation.
In African continent, only four countries: South Africa (2000), Zimbabwe (2002), Angola (2005) and Uganda (2005), have Freedom of Information legislation with varying degrees of compliance with internationally accepted standards and best practices on Freedom of Information. Eme (2008) aptly indicates that “the Zimbabwean variant falls out of line for being the most out-of-place, in terms of complying with the basic tenets of Freedom of Information, and as such now bears the unenviable toga of not being tagged a Freedom of Information Law properly so-called.” Several other sister-African countries like Liberia, Sierra Leone, Ghana, Kenya, Tanzania, Zambia, Mozambique, Madagascar, Algeria, just like Nigeria, are at varying stages of enacting Freedom of Information legislation.
The Nigeria‟s Freedom of Information Act (1999) makes provisions that public records and information be made more freely available; guarantees public access to public records and information to the extent consistent with the public interest as well as the protection of personal privacy; and covers the legal treatment of other related purposes (Nigeria Official Gazette, 1999). The proposal is in line with other countries with Freedom of Information Acts, comprehensive and complies with most aspects of the International Standards on Rights Laws. It demonstrates the nation‟s commitment to democratic liberalization. According to Amonoo, P. & Azubike, A. in a paper presented at the World Library and Information Congress – a division of the United Nations
Economic Commission for Africa held in Berlin (2003), “enacting a disclosure law is just the beginning, but producing tangible results through it in Africa will require a change of attitude and constant effort from the government and the public has to dedicate itself to intensive but disciplined and honest scrutiny of government activity. They observed that the standard operational and administrative framework for effective production, organization and dissemination of official information is lacking in most African countries, which means that even if the FOI laws are enacted, information may still not be accessible due to non-legal reasons.
However, we need to have FOI legislation in place before we talk of methods of achieving results through it. Most thriving democrats had instituted similar legislation in their respective countries decades ago. In the United State of America, it is made clear that “congress should make no law abridging freedom of speech and the press.” This is so made to place priority on the relevance of citizen‟s participation in decision-making. Lyndon Johnson‟s war on poverty when he was the President of the United States of America in the 1960s motivated him to sign the Freedom of Information Act in 1967. In signing the World‟s first Freedom of Information Act in law, after which subsequent ones have been modeled, Daily Independent of 24th November, 2006 cites President Johnson as saying: Government belong to the people, therefore all government documents and processes also belong to the people.
The paper also indicates that “the deprivation of urban ghettos, the erosion of the public education system, the spiraling epidemics of drug addition among
American youths”, were among what inspired him to sign the Act.
It is unfortunate that inspite of Nigeria‟s claim to be the giant of Africa, it could not emerge as one of the African countries with FOI legislation. Inspite of the spate of corruption, poverty level, unemployment, high increase in crimes and poor administrative infrastructure, Nigeria leaders could not be inspired to consider Freedom of Information legislation as one of the ways of fighting the menace. The parliamentarians could not know that passing the Act into law will help them more in their oversight functions; instead they attributed all benefits from the Act to the media.
FOI: A Tool for Good Governance, Accountability and Transparency Good Governance
The former UN Secretary General, Kofi Anan says, “government is perhaps the single most important factor in eradicating poverty and promoting development.” Governance nowadays occupies a central stage in the development discourse, but is also considered as a crucial element to be incorporated in the development strategy.
According to the UNDP, governance is viewed as the exercise of economic, political and administrative authority to manage a country‟s affairs at all levels. It comprises mechanisms, processes and institutions, through which citizens and groups articulate their interest, exercise their legal rights, meet their obligations and mediate their differences (UNDP, 1997). To the World Bank, governance is defined as the manner in which power is exercised in the management of a country‟s economic and social resources.
The World Bank has identified three distinct aspect of governance as the form of political regime, the process by which authority is exercised in the management of a country‟s economic and social resources for development, the capacity of governments to design, formulate and implement policies and discharge functions (World Bank, 1997) cited in Abdellalif, 2003). The United Nations Development Programme (UNDP), further explains that „good governance‟ is among other things, participatory, transparent and accountable, effective and equitable and it promotes the rule of law. Good governance also ensures that political, social and economic priorities are based on broad consensus in society and that the voices of the poorest and the most vulnerable are heard in decision-making over the allocation of development resources.
Sebina (2003:28) sees good governance “as the process, the function and power of government. It is the norms and values that a government takes into account as it governs.” Authorities believe that good governance is predicated on the following, among others:
• Legitimacy of government;
• Public participation in government;
• Respect for the rule of law;
• Freedom of Association and Expansion (Sebina, 2003)
The above elements of good governance are grounded on democratic values which are of the view that a government should legitimately come to power by virtue of being elected. This suggest that the government governs on behalf of the public that gave it mandate, and should be transparent to enable the public know how it functions. Further, the government should be accountable to the public who brought it to power. These values, presume that government and the public respect the rule of law and that the public be encouraged through legislation guarantees to express themselves freely.
In democracy, two elements are at play: the governed and the government. The government is chosen by the public and as a result has to account to them. Democracy is based on the understanding that the public being governed should play an active and meaningful role in the way they are governed. In the word of Sebina (2003:51), “active and meaningful role transcends beyond public participation in choosing their government through the ballot to their active involvement in governance. This does not mean that they should be going to offices as daily employees, but should be afforded the opportunity to influence public policy and other decisions made in their name.” Crucial to public participation is their being informed of what government does on their behalf. Meanwhile, for the public to be informed of what government does for their sake, it behooves on government to guarantee to them a legal right to be informed about what it is doing and as well, grant the right to ask questions as it affects them.
Accountability
As democracy takes root in a majority of African countries, the campaign for transparency and public accountability has gained an added impetus with the call for the Freedom of Information or disclosures laws gaining momentum. The global trend towards transparency, accountability as well as access to information on the operations and activities of intergovernmental organizations as encapsulated in such initiatives as „the Transparency Charter for International Financial Institutions (TCIFI)‟ and „the
Extractive Transparency Initiative (EITI)‟ signals a move towards enforcing the right of the citizens to know.
According to Sambo (2004), the concept of accountability is linked to the idea of stewardship. He summarizes the meaning of accountability as “a summation of giving account of actions take and being held answerable”, this means that giving account of stewardship would, by itself, be inadequate unless there is a means of holding the actor responsible. His words:
“Accountability could be defined as complete and satisfactory stewardship of (a public) officer in respect of the acquisition and application of the resources entrusted to the officer in the process of executing policies and accomplishing agreed objectives in accordance with extant rules and regulation (pg. 73).”
Accountability as a concept of openness could be broken into four segments: fiscal accountability, managerial accountability, programme accountability and individual accountability. Sambo explains that fiscal accountability constitutes the following: complete adherence to applicable financial regulations, consistency with good accounting principles, accuracy and fairness of reports and reality and legitimacy of transactions.
Idemudia (2008), while accepting this definition, adds that “fiscal accountability is the brain behind the formulation of laws such as Nigeria‟s Fiscal Responsibility Act, Budget Bill and Public Procurement Act to ensure that financial records and reports are accurate and that expenditure is within legislative appropriation.”
Managerial accountability refers to efficiency and economy of operations which include: complete and timely information, operational performance, contribution to objectives and competent handling of affairs.
Programme accountability has to do with the outcomes of activities and programmes which is to be indicated by achievements, benefits and effectiveness. Programme accountability is indicated by Sambo include: benefits of outcomes, impact of outcomes, sustainability of (favourable) outcomes, discarding/modification of (unfavourable) outcomes. Collaborating with the above explanations, Idemudia (2008) include that programme accountability goes with performance audit to find and evaluate programme effectiveness.
Individual accountability could be used to refer to the proposition that „he who takes action or exercises power should be made answerable for the action taken‟. Individual accountability is therefore based on commitment, honesty, integrity and loyalty.
Accountability in public enterprises must take cognizance of the fact that public enterprises are set up primarily for the achievement of prescribed and politically authenticated social and economic objectives. Thus, public enterprises operate within the rigidity of social or statutory enclave or nature (Sambo, 2004).
It is against these backdrops that the concept of Freedom of Information Laws became imperative in the developed democracies so as to ensure that the actions of the public officials are made open to the public. Government accountability, that is, the duty of public officials to report their actions to the citizens and the right of the citizens to take action against officials whose conducts the citizens consider unsatisfactory, is an essential element, perhaps, the most essential element of democracy. In Africa where revenues from natural resources in the form of taxes, royalties and other payments are very important for economic growth and social development, the lack of accountability and transparency in these revenues have increased poor governance and have led to corruption, conflict and poverty. Increasing transparency and accountability through Freedom of Information Laws will empower citizens to hold government to account; mismanagement or diversion of funds will become more difficult. This will benefit African economies in the long run by improving the performance of institutions.
Transparency
Parigi, et al (2004) defines transparency as “that decision taken and their enforcement done in a manner that follows rules and regulations. It also means that information is freely available and directly accessible to those who will be affected by such decision and their enforcement.” Idemudia (2008) describes the term transparency as “truth in action, discernible when good is intended without the colouration of subjectivity.”
Good governance has major characteristics like participation, rule of law, transparency, responsiveness, equity and inclusiveness, effectiveness, efficiency, accountability and strategic vision and consensus orientations (Parigi, et al, 2004). When the above characteristics are in place in governance, it assures that corruption is minimized, the view of minorities are taken into account and that the voices of the most vulnerable in the society are heard in decision-making and implementation. Transparency is widely recognized as a core principle of good governance. Transparency means sharing information and acting in an open manner. Free access to informati9on (FOI) is a key element in promoting transparency.
Transparency of Information and Disclosure
Information is crucial to good governance as it reflects and captures government activities and processes. James Madison cited in Parigi (2004) remarks that a popular government without popular information or means of acquiring it is but a prologue to farce or a tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power knowledge gives. Every citizen of a state has right to access information under the control of public authorities consistent with public interest. The main objective of governments providing information to its citizen is not only to promote openness, transparency and accountability in administration, but also to ensure participation of people in all matters related to governance.
In recognition of the above, most developed countries have considered FOI Laws as the most appropriate way of involving citizens in administrative principles. In developing nations like Nigeria, less than 40% of them have passed these laws. It is unfortunate that while every government preaches good governance, adequate provision of infrastructure and curbing of corruptions in the public sector, their negative attention to Freedom of Information legislation speaks opposite of what they preach.
Freedom of Information and the Media
Access to information from government bodies is essential to the media.
Banisher (2007:4) admits it when he says that “without an ability to seek and gather information from government, the media is hampered in its ability to gather reliable information. In consequence, society is harmed since important actions of government are not available to public scrutiny”
(http://www.osce.org/form).
In every free democratic society, the mass media ensures that the government is accountable to the people by providing information of essence and relevance. Nyanseor (2001:1) advocates that information based on foreign policy issues, the economy, education, and civic rights need be made available to the people so as to avail them the opportunity to better understanding government, its direction, role and impact on their daily lives (emphasis mine).
This commitment is based on “ethics and morals, upon which the media is oblige to be honest, sincere, critical and give laurels where and when expedient” (Nyanseor, 2001:1).
Most countries keep track neither of actual numbers of requests nor of the users of FOI laws. Banisar (2007:4) asserts that “in those that do, journalists are not the largest users of the Freedom of Information laws; in general, they make up only 10% to 20% of those making the request.Most requests are from individuals who are seeking information relevant to their daily lives, such as schools or development.” This however, contradicts the insinuations from our parliamentarians that the FOI Act is a media Act purported to empower the press so as to increase their terrorisms.
A study to find out the history of Freedom of Information Acts (FOIAs) in Australia, United Kingdom and United States of America shows that while citizens, groups, lobbyists, civil servants, academic and others campaigned for Freedom of Information, the mass media in the three countries generally proved reluctant to push for reform. From the perspective of the leaders and parliamentarians, mass media would appear to gain the most from Freedom of Information Act; but from the perspective of the media in those countries, making government more accessible to the public threatened their professional status and their exclusive relationships with politicians. However, the study did note that the case was less in America because the American Association of Newspaper Editor did advocate FOIA (Piotrowske/Sykes, 2004). Dabiri, Erewa – a member of the House of Representative and one of the co-sponsors of the FOI Act in Nigeria explains, in an interview with Daily Independence (2006), that the media is just one aspect of the society that would benefit; adding that, in American government which we often make comparisons, students, researchers and private organizations use it more than the media.
The Role of the Media in a Democracy
In any given society, the role of the mass media is distinct and enormous. It is the duty of the media as the watchdog of the society to comment upon the constructively criticize all individuals and institutions whose activities have a bearing on public interest. According to Lasswell, the mass media perform three major functions: surveillance of the environment, correlation and transmission of social heritage. Charles Wright, cited in Umechukwu (2000), adopted the Lasswellian functions but added entertainment which he thought, was missing. The expansion continues and gives the media a more embracing role in society which according to Siebert et al, cited in Umechukwu (2000), includes:
•News and information dissemination;
•Analyses and interpretation of social events;
•Education of the masses;
•Persuasion and public relations;
•Advert and sale of products (goods and services)
•Entertainment of people.
The role of the media in the society justifies the fight for the free flow of information. Sawant (2000) outlines three essential requisites of democracy to include: “a well informed citizenry, participation of the citizens in the day-today governance of the society, and accountability to the citizens of those who exercise power on their behalf.” He further argues that unless citizens have adequate and accurate information on all the issues and problems confronting them, they will be unable to make enlightened decision on them, and they will be unable to comprehend the day-to-day working of the government and to participate in it. Answering the question: who can furnish such information to the people at large? Sawant submits that:
“Media reaches the largest section of the society directly or through secondary leadership and viewership, regularly, constantly-almost every hour of the day, and also intimately.
Consequently, it is the media which enables the people to perform their three-fold functions in democracy: to participate in the day-to-day affairs of the society, to make informed decisions and to keep a check on the authorities who rule on their behalf (pg. 25).”
The media also provide debates and discussions which is absolutely necessary in democracy. The media can act as a channel between the people and the authorities. The grievances, the needs, the problems, the hopes and aspirations of the authorities may in turn be conveyed by the media to the people. The most important role of the Freedom of Information laws is to help establish the presumption that information should be made public, and that older laws favouring secrecy should be over-ruled. This improves the atmosphere for access by the media practitioners and makes it easier for them to obtain information. It will also help to promote justice and fairness in the activities of governments. Banisar (2007) adds that the “affirmative disclosure provisions are important to keep track of the activities of government bodies and to ensure that one type of media (such as government-owned or government-controlled) is not given exclusive access to information while less favoured media are excluded.”
It is pertinent to note that the proceedings in the legislature including the bills which come before it do require a critical analysis, by the media, before, during and after their passage. This informed this research on press coverage of FOI Act in Nigeria. The essence is to find out how the press has been faring in providing awareness and all the necessary information about the Act. It is against these backdrops that Sawant (2000:17) has this to say, “the legislators and the citizens do require being properly educated on the implications of the legislative measures, on the response of the executive to the queries, resolutions, notice etc, of the legislators, the stand taken by the different political parties and their spokesmen on various issues etc.”
Furthermore, Freedom of Information (FOI) provides an important tool for the media to gather in-depth information on how government is working.
Banisar (2007) opines that “journalists” request under FOI are often more detailed than those of the general public, particularly where these relate to indepth investigation pieces or „difficult‟ questions on local or national decisions of some complexity.” In the essence of the authentic information, the media is required either to speculate on the subject or rely upon secondary sources which may be misleading, motivated and biased hence the need for a FOI law.
Writing on the imperatives of the media in sustainable democracy, Akinfeleye (2003:31), cited in Oji (2007:417), explains that the basic imperatives of the press in the promotion and preservation of national interest and sustainable democracy will include but not limited to the following:
• Common carrier of ideas;
• Representative pictures of the society;
• Truth and meaning of truth in democracy;
• Classification of the values and goals of the society;
• Uncover and never to cover up;
• Monitor the government;
• Make the government accountable to the people: inform, educate and entertain the people;
• Promote the concept of accountability, integrity, honesty, fairness and equity;
• Give voice to the voiceless in the society; society agenda setter; forgoing national unity and integration;
• Promotion of sustainable national interest at all time and promotion of journalism integrity.
Freedom of Information and the Media in Nigerian Constitution: The Need for a Review
The constitution of the Federal Republic of Nigeria is the supreme document that defines all the fundamental principles according to which a nation is governed or constituted. In view of the underpinning importance of human rights, both the 1979 and the 1999 Constitutions have recognized that Freedom of Expression and the press is fundamental for the exercise of human right and expression of opinions. Section 22 of the 1999 Constitution, titled the “obligation of the mass media”, expressly state that “the press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this chapter and uphold the responsibility and accountability of the government to the people.” This section in essence
means that the press is justified to uphold the political, social, economic, cultural and international policy objectives of Nigeria. Okoro/Okolie (2004) include that “the idea is to institute and sustain a mechanism for national development and the furtherance of national interest in the sphere of regional and international interactions.” Section 39 of the 1999 Constitution titled:
„Right to Freedom of Expression and the Press‟ states as follows:
“(i) Every person shall be entitled to Freedom of Expression including freedom to hold opinions and to receive and impart ideas and information without interference.
(ii)Without prejudice to the generality of section (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas, and opinions: provided that no person, other than the government of the federation or of a state or any other person or body authorized by the President in fulfillment of conditions laid down by an act of the National Assembly shall own, establish or operate a television or wireless broadcasting station for any purpose whatsoever.
(iii)Nothing in this section shall invalidate any law that is reasonably justifiable in democratic society (a) for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematography films; or (b) imposing restriction upon persons holding office under the government of the federation or of a state, members of the Nigeria police force or other government security services or agencies established by law.
Spanning through the provisions and the spirit of section 39(1)(2), it is easily deduced that the constitution is in support of the Article 19 of the United Nations Universal Declaration of Human Rights which state that: “everyone has the right to Freedom of Opinion and Expression. The right includes freedom to hold opinion without interference and to seek, receive and impart information and ideas, through any media and regardless of frontiers.”
Other Articles that lend credence to Human Rights and the media are Article 19 of the International Convention on Civil and Political Rights operational on March 23, 1973; Article 13 of the American Convention on Human Rights, adopted on November 22, 1969 and Article 10 of the European
Convention on Human Rights brought into force on September 3, 1953 (Daramola, 2003B cited in Oji, 2008). All these articles are to guarantee the media certain right and Freedom of Practice. Yakubu (1999) cited in
Okoro/Okolie (2004:59) admits that “it is fundamental in any civilized society to guarantee the right of each person to express himself not only in respect of issues or matters of individual nature but also in respect of issues of public interest.”
However, the Nigerian constitution under section 39 does not give specific treatment to the press. Okoro/Okolie (2004:60) indicate that
“the right purported to have been given every person is quickly taken away by sub-section (3) which says: nothing in this section shall invalidate any laws that is reasonably justifiable in a democratic society; and section 45 which, under the title restriction on and derogation from fundamental rights, assert that nothing in section 37, 38, 39, 40 and 41 of this constitution shall invalidate any law that is reason justifiable in a democratic society (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons.”
Okoro/Okolie argue that the determination of „what is in the interest of defence, public safety, public order, public morality or public health‟ or when a law is enacted for the „purpose of protecting the rights and freedom of other persons, are not clearly defined; adding that such determination lies in the hands of people in the helm of affairs.
One basic ingredient that is sure to oil wheels of a free press is access to government information, hence the need for a Freedom of Information Laws to be enshrined in our constitution. A review of the 1999 Constitution to accommodate FOI laws will make Nigeria more democratic and institute an atmosphere of discipline, patriotism and efficiency in the administration of public policies. With Freedom of Information Laws, the much agitated press freedom may have been achieved. With the 7 point agenda of President Yar‟Adua and the efforts to fight corruption, Freedom of Information would be a vital instrument for fighting corruption. It will also aid the nation‟s anti-graft agencies: EFCC, ICPC etc, in their work. Statistics reveal that in countries where Freedom of Information has been enforced, positive results have been realized in terms of reduction in corruption, inefficiency and mismanagement.
Statistics also show that in 2005, of the ten countries scoring best in
Transparency International‟s Annual Corruption Perception Index, no fewer than nine had effective legislation enabling the public to peruse government files and of the ten countries that were perceived to be the worst in corruption, only two had Freedom of Information Legislation (allafrican.com, 2008).
Meanwhile, FOI reduces corruption and promotes transparency in governance, since citizens are empowered through information. Demystification of rules and procedures, proactive dissemination of relevant information touching on matters of public policy is a strong safeguard against corruption; therefore a formidable FOI legislation need be enshrined in Nigerian Constitution to actualize the objectives of democracy.
2.3 Summary of the literature
This part reviewed the related literature on the freedom of information act in Nigeria. It was in this light that the literature drew inferences from materials relating to: right to access to government information, press freedom, journalism practice in Nigeria, perception of the freedom of information act: criticisms and defence, perceived importance of freedom of information law, FOI: tool for a true democracy and state of Freedom of Information in Africa among others.