Introduction: The right to information is a component of the broader right to freedom of expression and of press enshrined in Article 19 of the Universal Declaration of Human Rights 1984(UDHR). Article 19 of the International Covenant on Civil and Political Rights1966 (ICCPR) Article 9 of African Charter on Human and People's
Rights, 1981(ACHPR) and other international human rights instruments.
Nigeria is one of the few countries in Africa that has a constitutional provision guaranteeing access to information and a specific law which further reinforces the provision with procedures and penalties for non-compliance in the freedom of Information (FoIA) which was passed in May, 2011.
Section 34(1) of the C.F.R.N 1999, which states that “Every person shall be entitled to freedom of expression, including the freedom to hold opinions and to receive and impart ideas and information without interference".
Section 39 of the C.F.R.N 1999, on the right to access to information. Notwithstanding, Section 39(1) of the CFRN 1999 sufficient legal basis exists, which guarantees access to information which are vital to the smooth function of democracy. A positive state obligation to protect access to information pursuant to Article 9 of the African Charter which has been domesticated as Nigerian Law. This gives effect to the original intent of the Constitution as a living document.
Sensitivity of National Security vis a vis right to freedom of Information.
The Official Secrets Act 1962 and the National Security Agencies Act 1986- Two main statues which permit limitations on access to information. According to Section 39(3) and Section 45(1) of the CFRN 1999 " the limitations must be "reasonably" justifiable in a democratic society. The challenge arises when information is sought to be restricted either on general grounds of public interest under the FoIA 2011 or on the more specific basis of National Security under the National Security Agencies Act, or for some other reasons permitted by other statutes.
Moreover, "National Security" has no precise meaning in Nigerian Law. And it has not helped that the constitution broadly confers power on these Agencies to limit access to information in the interest of Defense, without clearly specifying the test boy reasonable justification that the limitation must fulfil. However "Classified Matter" provided by section 9 of the Official Secrets Act, which defines it as" any information or thing which under any system of security classification, from time to time in use by or by any branch of government is not to be disclosed to the public and of which the disclosure to the public would be prejudicial to the secret of Nigeria".
The problem with the statutes is that the are extremely vaguely worded and conform extraordinary broad powers agencies that are saddled with the responsibility of classifying information. As a result, the power to classify information in the interest of National Security has been broadly abused in Nigeria; it has fostered secrecy around Government activities and has been used as a ploy for Official Corruption, to limit press freedom and other civil liberties. See a few instances of judicial exposition on the legality of limitations on access to information in Nigeria can be found in sedition cases. The most prominent of these are; DPP V CHIKEOBI (1961) All NLR 186, and ARTHUR NWANKWO V THE STATE (1983) FRN 320, there has been no authoritative pronouncements on the subject by Nigeria's Apex Court. The interpretative approach to Constitutional provisions thus remains underdeveloped and uncertain. Nonetheless, sedition laws continue to be asserted by the Nigerian Government against press freedoms especially.
In conclusion, reasons for the prominence given to the right to access to Government-held information is essential for the health of democracy. The quality of democratic Governance is improved and strengthened by public participation in decision making processes. But in itself, public participation cannot be effective access to information. Moreover, a legally enforceable right to Government held information will enhance efficiency and accountability, and boost public confidence in Government, in other words Government-held information actually belongs to the people, unfortunately, the people's ability to access such information is often impeded by the traditional reluctance of Government Agencies to release information in their possession.
This writer is monitoring the development regarding the reported invasion of the Premises of the national office of Daily Trust Newspapers in Abuja and its regional office in Maiduguri in Borno State few days back.
At first when my attention was called to it I expressed shock that this could happen in an era whereby the Chief of Army staff Lieutenant General Tukur Yusuf Buratai has entered the annals of our national history as the head of the Army that significantly improved relations between the civilian and military citizens in Nigeria with the institutionalization of a full department to coordinate civil and military relations which is headed by a senior General with offices spread across all the command structures of the military establishment.
The current Chief of Army Staff Lieutenant General Tukur Yusuf it was who entered into partnership with numerous credible civil society platforms and professional groups aimed at the mainstreaming of the respect of the fundamental human rights in the organizational and modus vivendi/operandi of the Nigerian Army.
So when this information reached my desk, I made extensive contacts with people who should know in and out of government institutions and I learnt that a certain report detailing a planned internal military operations by the Nigerian military in the ongoing Counter terrorism war may have caused the badblood between the usually friendly Nigerian Army and the ever responsible media in Nigeria.
This writer acknowledges that the Daily Trust is one amongst the very best in terms of professionalism and ethical conducts in carrying out their jobs. Indeed, most media analysts rate the Daily Trust as one of the very few Newspaper institutions that have supported the current administration and has consistently supported the ingoing counterterror war. This report detailing proposed military operations could have been avoided in the interest of national security and in line with the social responsibility role of the fourth estate of the realm. There are little doubts that the report may have destroyed the essence of the combat operations been panned by the Nigerian Army. The Nigerian Army we must admit has done so much and paid supreme sacrifices to work towards ensuring the preservation of the territorial integrity of Nigeria.
“Recalled that there is the expert opinion that national security is the requirement to maintain the survival of the state through the use of economic power, diplomacy, power projection and political power.”
“The concept developed mostly in the United States after World War II. Initially focusing on military might, it now encompasses a broad range of facets, all of which impinge on the non-military or economic security of the nation and the values espoused by the national society.”
Furthermore, “I hereby restate a universal view that in order to possess national security, a nation needs to possess economic security, energy security, environmental security.”
“Security threats involve not only conventional foes such as other nation-states but also non-state actors such as violent non-state actors, narcotic cartels, multinational corporations and non-governmental organizations; some authorities include natural disasters and events causing severe environmental damage in this category.”
“Measures taken to ensure national security include: using diplomacy to rally allies and isolate threats marshaling economic power to facilitate or compel cooperation maintaining effective armed forces implementing civil defense and emergency preparedness measures (including anti-terrorism legislation) ensuring the resilience and redundancy of critical infrastructure using intelligence services to detect and defeat or avoid threats and espionage, and to protect classified information using counterintelligence services or secret police to protect the nation from internal threats.”
On the same vein, I know that the media has a responsibility to inform, educate and entertain the citizenry and to check abuses in the polity. Both the media and military institutions are subject to rule of law.
As head of the Human rights Writers Association of Nigeria (HURIWA), to therefore read in the middle of the Day that Men of the Nigerian Army invaded Daily Trust head office in Abuja after taking over the Newspaper’s regional office in Maiduguri, Borno state and arrested the regional editor, Uthman Abubakar and a reporter, Ibrahim Sawab indeed came to us as a rude shock.
Take note that I have already mentioned that in the last three years the hierarchy of the Nigerian Army has demonstrated maturity and commitments towards domestication and mainstreaming of virtually all international human rights provisions into their operational manuals and that pragmatic efforts have been made by the hierarchy to ensure that the operatives respect the fundamental human rights of citizens and the soldiers. Several indicted human rights violators have been sanctioned even as many more of such cases are in their different stages of adjudication through the instrumentality of internal conflict resolution mechanisms and the mechanics of the human rights investigative desks set up in all military formations by the Chief of Army staff under the supervision of the department of civil and military relations.
The soldiers reportedly forced the gate open at the head office and drove in with three Jokic vans loaded with armed soldiers just as everyone in the building was asked to move to the ground floor while they move computers. We are making efforts to verify these accounts and to urge for restraints.
The writer hereby urge the military authority to show greater restraint and embark on the search for legal and or amicable resolution of whatever conflict may have arisen between the military institution and the media. The media workers arrested should be released forthwith.
It is a fact that section 22 of the 1999 constitution confers on the media the right to serve as ombudsmen and gatekeepers for the preservation of good governance and the respect of the fundamental human rights as enshrined in chapter 4 of the Nigerian Constitution but at the same time we acknowledge the strategic place of the military in line with section 217 of the Nigerian constitution in which case the territorial integrity of the Country ought to be protected by all means.
Section 22 of the Nigerian constitution stated thus: “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.”
Section 217 (1) and (2) stated:- “There shall be an armed forces for the federation which shall consist of an Army, a Navy, an Air Force and such other branches of the armed forces of the Federation as may be established by an Act of the National Assembly; The federation shall, subject to an Act of the National Assembly made in that behalf, equip and maintain the armed forces as may be considered adequate and effective for the purpose of – defending Nigeria from external aggression; maintaining its territorial integrity and securing its borders from violation on land, sea or air; suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the president, but subject to such conditions as may be prescribed by an Act of the National Assembly; and performing such other functions as may be prescribed by an Act of the National Assembly.
The threat against the corporate existence of Nigeria by the armed terrorists of Boko Haram terrorists and other terrorist elements affiliated to Islamic State of Iraq and Syria is grave so all hands ought to be on deck to defeat the terrorists once and for all. The media must guide against any sensational reportage that is capable of undermining or ruining the strategic operations of the gallant soldiers who bear the brunts of waging this war so that our lives can be preserved and protected.
Although the Nigerian Army under the Constitution has no judicial powers of the federation which in section 6 is domiciled with the Judicial arm of the federation and therefore couldn't have embarked on the use of measures that may be deemed as resorting to self-help measures rather than use the instruments of the laws to press charges, we think it is wrong professionally and a danger to the sanctity of our national security for the media to leak a planned military operation against a terror group that enjoys the backing of ISIS.
The media must exercise the greatest discretion and report responsibly because the corporate health and existence of Nigeria is endangered and indeed we are indirectly in an era of enforced emergency created by the daredevil terrorist activities of boko haram terrorists.
I would suggest that whatever professional sacrifices the media must give to preserve the sanctity of the territorial integrity of Nigeria and conserve national security must be done now that Nigeria faces the greatest threats against our very existence as a nation and a people. The haste to write sensational page 1 story to capture the imagination of buyers and advertisers must be mitigated by the urgency of the now to preserve our national security because if there is no Nigeria there will be no Nigerian media.
This piece will not be complete without reminding the military hierarchy of the doctrine of compact which i know that Lieutenant General Tukur Yusuf is vastly knowledgeable about.
Brigadier General T.E.C. Chiefe (Rtd) Ph.D, who is now late wrote, in his phenomenally rewarding legal book titled “Military law in Nigeria Under Democratic Rule”, that: “The soldier is part of the society and also a citizen. Being a soldier does not remove him from the society but puts on him a specially conjured status called ‘compact’. He enjoys all the rights of a citizen except those he surrenders by virtue of his being a soldier.”
“Upon acquisition of military status, both civil and military law govern him. In support of this position, Takai submits that “the soldier by becoming a soldier does not relinquish his identity or status as a citizen with the rights and obligations contained in the constitution. He remains subject both to the civil and military laws a situation described by some jurist as a compact.” This duality of status was aptly described in Grant v. Gould, where it was stated that a soldier does agree and consent that he shall be subject to the military discipline, and he cannot appeal to the civil courts to rescue him from his own compact.”
“The doctrine of compact was further explained by Justice Willes in Dawkins v. Lord Rokeby when he said “But with respect to persons who enter into the military state, who take His Majesty’s pay, and who consent to act under his commission, although they do not cease to be citizens in respect of responsibility, yet they do by a compact which is intelligible and which requires only the statement of it to the consideration of any one of common sense, become subject to military rule and discipline.” The Army and Media must synergize to serve the public interest of Nigeria. There should be no animosity.
*Emmanuel Onwubiko, erstwhile Federal Commissioner of Nigerian National Human Rights Commission is head of Human Rights Writers Association of Nigeria (HURIWA) and blogs @ www.emmanuelonwubiko.com; www.huriwanigeria.com;www.huriwa.blogspot.com; www.thenigerianinsidernews.com.