Date: 2020-12-12

THE Kwara State government has willfully disobeyed the Freedom of Information Act which holds the government and officials answerable, while hiding under the justification that the FOI Act hasn't been domesticated by the state.

The Freedom of Information Act 2011 is an Act enacted by the National Assembly to make public records and information more freely available, provide for public access to public records and information, and to protect public records.

According to a Premium Times report, a decade after the Freedom of Information (FOI) Act was legislated in the country, no fewer than 16 states are yet to domesticate it or create comparative and parallel mechanisms that serve to promote transparency and accountability in government.

The 16 states include Imo, Anambra, Akwa Ibom, Edo, Osun, Ogun, Plateau, Kogi, Nasarawa, Niger, Kano, Sokoto, Bauchi, Adamawa, Taraba, Yobe and Kwara.

How Kwara Ministries Violate FOl Act

Recently, The ICIR approached the Kwara State government requesting for information about Covid disbursements to the state by Federal Government.

The FG granted the sum of 1 billion nairas to Kwara State and another 100 Million Naira from the REDISS (World Bank) programme disbursed through NDDC as Covid-19 support for the Kwara State government.

While speaking with Mr. Rafiu Ajakaye, the chief secretary to the Governor, he directed that a formal letter should be written to the concerned ministries to get the document on how the Covid-19 fund is spent in Kwara State and the details of contract awarded under Covid-19 projects.

"Please submit it to the relevant ministry you want to answer your questions. They will then copy the ministry of justice, " he said.

The ICIR then wrote a letter dated November 20 requesting the details of how the Covid-19 fund is expended in Kwara State.

The letter was submitted to the ministry of finance on Monday, 23 and the scretary to the commissioner informed this reporter to come back on Thursday, 26th of November 2020 to obtain a reply.

When the reporter returned to the ministry on Thursday, 3rd of December 2020, the secretary to the commissioner instead directed this reporter to the permanent secretary's office, and from there to the director’s office before he was later directed to the office of Olarenwaju O. Kikelomo who is in charge of FOI letter submitted to the ministry.

Mrs. Olanrewaju told this reporter to come back without any stipulated date, noting that the letter was still going through the due process and she requested for the reporter's contact, with a promise to call to notify the reporter whenever the result of the letter is released.

Meanwhile, section 4 of the FOI Act specifies seven-day deadline for all requests.

Yet, a week after Mrs. Olanrewaju promised to contact this reporter, she defaulted.

When the reporter got to the ministry a week after, Thursday, 3rd of December, she informed this reporter to sign on the original document of the memorandum which contains that the Freedom of Information Act hasn’t been domesticated in Kwara State, and according to the legal input of the state’s ministry of justice, the FOIA doesn't have an automatic application to states, and concluded that the document for the details on how Covid-19 fund is spent cannot be released.

When she was informed about the recent case between ALO v. Speaker, Ondo State House of Assembly in which the court held that the FOI Act is binding on all 36 states in Nigeria whether it has been domesticated or not. She replied that she was working on the order she was given, noting that she is not a lawyer but just a civil servant.

"That's the response we received from Ministry of Justice,"– says Permanent Secretary to the Commissioner for Finance

In an interview with the permanent secretary, Folohunsho Abdulrasak, he explained that a letter was written to the ministry of justice and the reply the finance ministry gotten is that Kwara State is not binding to follow the FOI Act cited in the letter submitted to the ministry.

When he was asked whether the ministry of justice was not aware of the court of appeal ruling on the domestication of FOI Act in the state, he emphasised that’s the final response received from the ministry, and that the ministry even quoted a Supreme Court ruling to support their decision.

FOI Act applies to all states in Nigeria, Appeal Court rules

Nigerian states have no powers to deny requests filed under the Freedom of Information Act (FoI), the Court of Appeal has ruled.

In a March 27 decision at the Akure Division, the Court of Appeal ruled that the requests for information, particularly around public expenditure, under the FoI, are made in the public interest and should be honoured by all states.

This is an appeal case between ALO v. SPEAKER, ONDO STATE HOUSE OF ASSEMBLY & ANOR CITATION: (2018) LPELR-45143.

The decision was made in an appeal filed by Martins Alo who requested the audited report of Ondo State Government between 2012 and 2014 to properly access how public funds are utilised in the state. But the request was rejected, which made him seek judicial redress.

The Akure Division of Ondo State High Court had previously ruled in 2016 that Mr. Alo had no right to demand how the state was spending money, stating that the FoIA did not apply to states and the request was not in the public interest, to begin with.

The decision of the High Court was quashed by the three members panel of the court of appeal when they agreed with the appellant, Mr. Ilo that the FOI Act is applicable in all states and it was in the public interest for the state government to release its audited report.

Therefore, the refusal of the Kwara State Ministry to provide information on the details of how the Covid-19 fund is spent in Kwara state after 11 days of the receipt is a clear violation of section 4 of FOI Act which stated that;

"Where information is applied for under this Act the public institution to which the application is made shall, subject to sections 6, 7, and 8 of this Act, within 7 days after the application is received- (a) (b) 5. (1) make the information available to the applicant.

In addition to that, the Civil Society Network Against Corruption (CSNAC) has once written to the Lagos State Auditor General for Local Governments, in response to the latter’s assertion that the Freedom of Information Act does not apply to public records of the Lagos State Government.

According to the CSNAC letter which was signed by the Chairman of the organisation, Olanrewaju Suraju, the Auditor General’s statement had come up during the submission of the 2012 audited report of Local Governments and Local Council Development Authorities of Lagos State, as requested by the CSNAC.

Attempting to correct this position, the CSNAC wrote, "All states in Nigeria are bound to the Freedom of Information (FOI) Act, 2011. We argue not indeed 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.

The letter went further to outline precedent and patterns that establish the above.

'On September 17, 2013, the Attorney General of Oyo State also proposed 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 being legislated for all of us. This is what we call the doctrine of covering the field" 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. According to a Business Day report showed that 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 judgment was as a result of an application brought before the court by an Ibadan-based human rights 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 according 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 to the letter dated July 25, 2012, stated: "You may, however, be informed that the FoI Act, 2011, under which you are requesting for the information contained in your letter is not presently applicable in Oyo State because it has not been domesticated by the state and this is similar to the response of Kwara State Ministry for Finance.

Meanwhile, despite the court of appeal ruling in the case of ALO V. Speaker Ondo State House of Assembly, Kwara State ministry of justice still wrongly advised the ministry of finance, claiming that FOI Act is not applicable in the state and that the Act doesn’t have an automatic application to States.

Experts weigh In

While 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 further noted that '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," the letter explained.

Also, "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 an Interview with Sofiullahi Balogun, the former Court of Appeal Judge, Law Student Judiciary, ABU Zaria, he clarified that the ruling in the case of ALO V. Ondo Speaker House of Assembly applies to all states, noted that the Supreme Court hasn't made any decision on the domestication of FOI in the states contrary to what the permanent secretary to the commissioner said on FOI Act.