On behalf of the Civil Society Network Against Corruption (CSNAC), We wish to appreciate the State’s 'commitment' to transparency and due process; and acknowledge the copy of Statutory report of the office for the year 2012 forwarded to us, in response to our request for a copy of the 2012 audited report of Local Governments and Local Council Development Authorities of Lagos State.
We would like to bring to your attention sir, that, contrary to your assumption as stated in your response to our request, “... the Freedom of Information Act is not applicable to public records of the Lagos State Government”; all states in Nigeria are bound to the Freedom of Information (FOI) Act, 2011.
We argue not in deed that the National Assembly and House Assembly have concurrent powers to make laws within their respective powers of jurisdiction but this is not inclusive of all laws as is the case of the FOI Act.
On September 17, 2013, the Attorney General of Oyo State also presented the same argument at the Oyo State’s Stakeholders’ Town Meeting on Monitoring Democratic Governance project (1999 Constitution Review), South West geo-political Zone, when requested to make a pronouncement on the State's position on the FOI Act. In his words,
“When the Federal Government passed the FOIA, information is not a matter under the exclusive list in the constitution… it is on the concurrent list. if the matter is on the exclusive list like aviation, maritime… it means it is been legislated for all of us. This is what we call the doctrine of covering the field”
But on November 18, 2013, ThisDay Newspaper reported that an Oyo State High Court sitting in Ibadan Judicial division held that the application of the Act is for the entire federation, therefore, it does not need to be domesticated by any state before taking effect in all states across the federation.
The presiding judge of the court, Justice S.A Akinteye said the National Assembly has the legislative competence to make laws for the peace, order, and good government of Nigeria that is applicable to all states of Nigeria without infringing on the autonomy of the states if such legislation is designed to correct a malaise plaguing the country.
Justice Akinteye’s judgement was sequel to an application brought before the court by an Ibadan-based human right activist and lawyer, Mr. Yomi Ogunlola, seeking the court to determine whether the Act needs to be domesticated by Oyo State before it becomes operational in the state.
Ogunlola had written a letter to the clerk of the Oyo State House of Assembly, requesting information pursuant to section 2 of the FoI Act. The lawyer in his letter dated July 23, 2012, sought to know the source of the funding of the legislators’ wives trip to London, having regard to the fact that the women were neither public servants, nor civil servants. The Clerk, while replying the letter dated July 25, 2012 stated: “You may however be informed that the FoI Act, 2011, under which you are requesting for information contained in your letter is not presently applicable in Oyo State because it has not been domesticated by the state.”
Daily Independent newspaper also reported on April 1st, 2014 that a Federal High Court sitting in Enugu state ruled in the favour of Civil Liberties Organisation (CLO), who through its South-East Zonal Director, Olu Omotayo, had approached the court seeking for an Order of Mandamus directed at the Commissioner for Health, Enugu State, requesting for the records and documents in respect of the contract awarded for the building and completion of the Diagnostics Center, Enugu, at Old Trade Complex, Abakiliki road, Enugu.
CLO further prayed for a declaration that the failure of the Commissioner to supply the records and documents in respect of the contact was wrongful and contrary to the provisions of Clause 2, 4 and 8(5) of the Freedom of Information Act 2011.
The state government, in its defence to the suit brought by CLO requesting for the records and documents in respect of the contract awarded maintained that it has no obligation under the FoI to provide the information sought. It further contended that Enugu State is yet to adopt the Freedom of Information Act or enact same as its’ laws and that the Federal High Court lacks jurisdiction to entertain the suit.
Justice Agishi, the presiding judge on the matter held that the FoI Act is applicable to both federal and state institutions and that public officers of the states are also subject to the Act. She further stated that FoI Act covers the whole of Nigerian states like the EFCC Act, among others, and that its aim is to encourage accountability, transparency and rule of law, stating that the beauty of the Act is that it places public interest above personal interest.
In addition, elombah.com on May 26th of this year related that a Makurdi High Court presided over by Honourable Justice S. O Itodo also ruled on that day that the Freedom of Information Act, 2011 is applicable to all the States of the Federation including Benue State.
In a ruling delivered by Justice Itodo, the Honourable Judge overruled the objection raised by the Commissioner of Finance, Benue State that the provisions of the Freedom of Information Act was not applicable to Benue State because the Benue State House of Assembly is yet to enact a Law domesticating the Freedom of Information Act in the State.
The Court upheld the argument of Counsel to the Plaintiff, Okoi Obono-Obla that by virtue of Section 4 of the Constitution of the Federal Republic of Nigeria, the National Assembly has the constitutional jurisdiction to enact the Freedom of Information Act and therefore the provisions of the Act being an extant remains binding on all States of the Federation.
Daily Independent reported on May 22nd, 2014 that as result of the challenges been encountered by the FOI Act, chief amongst which is the argument that it needs to be enacted in States before it can be applicable in the States; the Open Society Foundation (OSF) which has been involved in the herculean task of ensuring the passage of the FOI Act, engaged the Nigerian judges by securing a partnership with the National Judicial Institute (NJI), which has a mandate for judges’ continuous education and they came out with a refresher course for judges on the FOI Act.
Chief Justice of Nigeria (CJN), Justice Aloma Mukhtar, speaking at the refresher course for judges on the Act charged them to have a proper understanding of the Freedom of Information Act 2011 as, according to her, the FOI Act is a watershed in Nigerian human rights jurisprudence.
In his welcome address, the administrator of the NJI, Justice Umaru Eri, said that the refresher course was organized by the Institute to promote efficiency and improve the quality of justice delivery in the nation’s courts. Justice Eric pointed out that “the FOI Act has radically altered in a most fundamental way, how the three organs of government relate with the ordinary citizen. It supersedes the Official Secrets Act of 1911 and the relevant provisions of both the criminal and penal codes, amongst other relevant aspects of the extant Civil Service Rules.”
Also speaking at the refresher course, a judge of the Kwara State High Court, Justice Abiodun Adebara stated that the FOI Act provides that “Everyone has a right to access information or records in the custody of public institutions (which includes relevant private entities), irrespective of the form in which such information or records are kept.” He also said, “People don’t have to provide any reason for requesting information or records. The Public institutions are statutorily obliged to create, keep, organize and maintain records/information about their set up, structure, operations, et al, in a manner that facilitates public access to such information.”
While we appreciate the spirit in which the requested documents were offered, we would therefore like to clarify that our request using the FOI Act is substantial and Lagos State need not domesticate the law as it is applicable to all states of the Federation. This conclusion is reached based on the rulings of competent courts in the aforementioned states and grounded in the pronouncements of the custodians and interpreters of our laws- the judges of our nation.
We once again thank you for your cooperation in this regard and implore you, and other officers of Lagos State Government to uphold the principle transparency and accountability in governance, by providing access to information and record for tax payers whenever such is requested.
To: Lagos State Auditor General for Local Governments
Block 2, Old Secretariat Complex