| FOI Bill And The Elusive Open Society |
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| Written by Reuben Abati | |||||||||||||||||||||||||||||||||||||
| Sunday, 05 October 2008 | |||||||||||||||||||||||||||||||||||||
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FOI Bill And The Elusive Open Society
By Reuben Abati
One of the major highlights of the October 1 Independence Anniversary this year (apart from the stylish but insincere independence day speech by the President, loaded with false claims as it was, and the praise-worthy renaming of streets in the Federal Capital Territory) is the well-advertised and well-considered protest march by civil society groups against the attempt by some forces in the Senate to make a complete mockery of the Freedom of Information Bill as proposed. The groups involved in the protest march included the Civil Liberties Organisation, the Nigeria Labour Congress, the Trade Union Congress, the United Action for Democracy, the National Association of Nigerian Students and the Constitutional Rights Agenda. It is refreshing to see the old pro-democracy coalition finding an urgent reason to return to the trenches in defence of a just cause. Times like this call for such re-armament moreso as this coalition, known for its heroism in those good old days, soon became one of the victims of the complexities of the democratic process, with many of the groups compromised beyond measure, in Nigeria's emergent politics. To cite just one striking example, the Students' Association, NANS, fell on such bad times, that it became at a time, terribly disorganised with the leader of one of the factions, the more assertive faction, claiming that NANS had become the youth wing of the ruling Peoples Democratic Party (PDP) and that he, the President of the Association was determined to spread the gospel of prosperity (read: "come and chop politics"). The integrity of civil society groups and their internal democracy, or lack of it have always been of interest, but it is truly enheartening to see a new found dynamism around the vexed subject of the Freedom of Information Bill vis-a-vis the shenanigans of Nigerian law makers and public officials. The travail of the FOI Bill in Nigeria is a reflection of the weakness of the country's national integrity framework. President Olusegun Obasanjo in the last days of his administration had refused to sign the bill into law, on the grounds of sheer pretence and some semantics, and we had all appropriately condemned that former President for this. But the silly games that the present National Assembly and the Executive arm of government have been playing with the FOI Bill are infuriating. The hypocrisy of those who before now had pretended to be interested in the FOI Bill in official corridors, amounts to an assault on public intelligence. Let us begin with the Yar'Adua Presidency. The administration's initial profession of faith in the rule of law and a culture of openness, with optimistic statements about the Freedom of Information law had raised hopes that perhaps now, the law will become a reality. But is this not the same government that has rubber-stamped a culture of secrecy in government? President Yar'Adua's aides have no convincing explanation for the oath of secrecy that they took recently. Some state Governors, local council chairmen, and state legislators, have since spoken up in support of the FOI bill, but they are just as hypocritical. Are these not the same Governors and lawmakers who have refused to adopt the Fiscal Responsibility Act in their states? The Fiscal Responsibility Act is of the same spirit as the FOI Bill. But it is the conduct of the present National Assembly in relation to the FOI Bill that has been most scandalous. Hopes that the class of 2007 will take the unfinished business of the FOI Bill and finish it have now been dashed. The lawmakers had taken up this bill, which has now spent eight years before the National Assembly, with each class tinkering with it and leaving it for the next class, but it is clear that they are not interested in moving Nigeria towards being an open society. What we remember are their excuses. First, it was said that the new set of Made-in-2007 lawmakers needed to study the Bill and understand it. It was alleged that the promoters of the bill did not make draft copies of the Bill available to the lawmakers. Second, some members of the House of Representatives alleged that the promoters of the Bill are arrogant or that they did not present their case properly. Third, fears were expressed about making a law that would make journalists too powerful by granting them greater access to information. In the end, members of the House of Representatives could not forge a consensus on the Bill. When they deliberated on the FOI Bill on June 3, the exercise nearly degenerated into a physical combat with lots of name-calling. In terms of numbers, there are very few pro-FOI members out of the 360 legislators in the House of Representatives. Members of the Upper House have also just been as divided. The Bill was eventually sent to the Committee on Information and Media chaired by Senator Ayogu Eze, for review. Three weeks ago, Senator Ayogu Eze raised the hopes of all progressives when he declared that the Senate would pass the FOI Bill within three weeks and make it a 48th independence anniversary gift for all Nigerians. Said he: "In the next two to three weeks we will pass the Freedom of Information Bill and make it a law in Nigeria, as part of our commitment to promote transparency and openness in governance and to show that those in government as well as outside it should hold themselves accountable to Nigerians at all times. If you have nothing to hide, there is no reason to be afraid of in the Bill. I have gone through that Bill and there is nothing that is not already captured in the various statutes, and even the constitution of the country. "It is just like synthesising a body of regulations and laws that we already have here and there to give it direction, and give people access to information that would promote intervention in governance. And there is a determination on the part of the Senate to pass the Bill and hope the executive will also sign it into law," The Eze committee has now made public its review of the document as well as its proposals. What the lawmakers have come up with is shameful and scandalous. If accepted as proposed, the Nigerian FOI Bill will be the worst in the world, and serve no purpose whatsoever. The true test of a law is in its implementation and social relevance. The Eze committee's proposals as published restrict access to information rather than promote it. The justification for the kind of assassin's job that the Senate Committee on Information has done with the FOI Bill, is - Ayogu Eze argues, to redesign the Bill "with a lot of responsibility and some safeguards to ensure that nobody can use it to hold the country to ransom." The Senate Committee Chairman spoke about synthesizing certain regulations and laws. That is not what he and his colleagues have done. Ayogu Eze should know better. Who is he trying to deceive? What he and his colleagues are seeking to do is to enact a non-law that defeats its own objectives. And the question to ask is: whose interest are they protecting? Definitely, it is their personal interest. One of the lawmakers had pointed out that it would be wrong to enact a law that will further empower journalists. He is quoted as having said: "it would mean that they will be putting guns to our heads as politicians. When they do not have a law on FOI, we know what we go through. Imagine what will happen after." These lawmakers are either deaf or mischievous or both. The point has been repeatedly made that the FOI Bill is not a law for journalists, or the media, but a law that promotes transparency, accountability and good governance. Several international conventions to which Nigeria is signatory, recognise access to information as a necessary condition for the making of an open society, and as a basic human right. Nigeria's lawmakers seek to make it a privilege. They claim that they are protecting national security. It is their own fears that they are expressing. First, the Senate Committee has now placed a burden on the person who is seeking information. In the original draft which was passed by the National Assembly in 2007, and which President Obasanjo refused to sign, a concerned citizen did not have to give any reason for seeking access to official information. In the proposed amendment, such a person is now required to seek the leave of a State of Federal High Court before making any request, and he/she will be required to prove that the request does not pose any threat to national security. This section 2 as revised is meant to discourage any requests for information. Second, under the new proposal, a concerned public officer does not need to offer any written notice as to the success or failure of an application for information. Thus, the arrogance of the Nigerian official is guaranteed and his or her love of secrecy is further affirmed. A law that is supposed to instil the values of servant-leadership, transparency and accountability, is now in its revised Section 5 (1) (a) designed to do precisely the opposite. Third, in the original version, an erring public official who stands in the way of the law, by falsifying or destroying information was liable to a jail sentence of three years, but in the proposed version, this has been reduced to one year, and even then, it would be difficult for the law to have such effect, having been watered down so heavily in favour of a culture of secrecy. Four, all the public interest overrides in the old Bill have been removed except the one dealing with third party protection. The Eze committee is upholding several exemption clauses that cannot be waived in the public interest. Five, the time limit for considering applications has now been extended so cynically that it may take up to 120 working days before an application can be attended to. When the initial court process is added to this, an application for information may take up to a year or more, during which process the information being sought may have been overtaken by events. Six, the whole idea of the FOI Bill is to encourage whistle blowers, and thus turn every citizen into a watchdog of the public sphere. The whole of Section 31(2) dealing with whistle-blower protection has been removed. Who is that whistle-blower now who would risk been made a sitting target for the assassin's bullet? These proposals are supposed to be tabled before the Senate for consideration and ratification. We can assume that members of the Eze committee consulted their colleagues before arriving at this hatchet job, and so there may be little to expect from the larger Assembly. This is most unfortunate. The FOI Bill is the oldest Bill in the National Assembly and probably the most controversial to date. Its misfortune is a major setback for the FOI coalition and everyone seeking a deepening of Nigerian democracy through the opening up of the society. The last National Assembly is now in retrospect, more enlightened than the present team. These new lawmakers have taken us backwards on the FOI case; for it would appear that eight years of advocacy and lobbying by the progressives seems to have come to naught. The question has been asked: what again should concerned citizens do at this point? Some people have recommended more protest actions in different parts of the country. Others have opined that now is the time to intensify lobbying to make sure that other Senators support the Bill. The CLO is prepared to lead more protests. The law firm of Bamidele Aturu and Co is organising an FOI Conference later this month. But have we not reached a stage now when the FOI coalition should begin to count its losses on the FOI?. There is need for a different kind of strategy. And defining this must begin with the question: what else can be done to ensure good governance even in the absence of an FOI bill? What should be the citizens' responsibilities? To continue to seek progress through cynical public officials who seem to have made up their minds against the FOI Bill eight years down the line, three different parliaments later, calls for a rethinking of options. Or to put it differently: must there be an FOI Bill in Nigeria before we can hold our leaders responsible? What if the lawmakers pass their own law, a dead law and not the people's law? Dealing with a deaf and dumb legislature could not have been in the contemplation of those who designed Article 19 of the Universal Declaration of human Rights as a universal norm. In 2007, FOI advocates had on their side members of the National Assembly. Today, both the National Assembly and the Presidency do not appear to be too keen about the Freedom of Information. With this kind of scenario it is possible to conjecture that even if an FOI law is agreed upon, its implementation is bound to be as difficult as its making has been. This is why a new strategy may be required. We pay such a high price eight years later because there are few democrats in Nigeria's democracy. A sloppy, watered down FOI Bill as proposed by the Senate Committee on Information and Media is unacceptable.
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Posted by Robot| 05.10.2008 07:04