Freedom of Information Act: Editor’s Tools for Promoting Accountability and Good Governance. A text of a lecture delivered by Dr. Sam Amadi, Director, Abuja School of Social and Political Thought,

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  • Posted by: Imoh Robert

Introduction:

As Nigeria prepares to put together the final processes for the 2023 general elections, one of the most important issues for public discourse should be freedom of information. As I will argue later, it is not conceivable to think about a robust democracy that is not built on the foundations of freedom of expression and the press. A free press is part of the universe of freedom of information. A free press is both a beneficiary and a facilitator of freedom of information. In this paper I will argue more explicitly about the relationship between freedom of information and democracy and development. I will show how development depends on the quality and accessibility of information, and the responsibility that editors and allied professionals in the media industry owe to society to promote access to and equitable use of information.

As I was preparing this paper, one of my younger colleagues, actually an intern, asked me whether there is any free information. He wondered why the fuss about freedom of information when, in her views, information is not free. Of course, all of us can imagine how difficult it is for us to gain access to information we need at all times. The technology may be easy, but the availability, the financials and other costs of accessing the information may not be cheap and easy. But, thankfully, the costs of gathering and disseminating information are tumbling down. In spite of the costs of access to information, whether in terms of technological constraint or financial disability, more and more people are able to access vital information they need for the pursuit of their life ends. We will expect more and more reduction in the cost of information as technological advancement and diffusion make information easier and cheaper to generate and consume.

But the availability of information is not the same as its accessibility, even as they are related. Information may be available but not easily accessible. To be truly meaningful, freedom of information needs to be complemented with right to information. This right may be a moral right in the sense that people ought to have them, but they need to be legally provided for people to effectively enjoy them. It is not enough that they are morally desirable or inherent to people. There should be a legal authorization for people to enjoy them. So, the right to information should move from being a moral right to a legal right.

In modern constitutions, it is the freedom of information and the press rather than the right to information that is expressed as a part of human rights. Both the International Covenant on Civil and Political Rights entered into by the United Nations in 1966 and the African Charter on Human and Peoples’ Rights entered by African leaders in 1983. Both international law and domestics laws guarantee to everyone the right to freedom of expression and the press. It is noteworthy that the African Charter has been incorporated into Nigeria law through Section 12 of the Constitution that authorizes the National Assembly to domesticate international treaties. The Nigerian Supreme Court in Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) page 228, declared the African Charter as of a higher legal efficacy than any other domestic law in Nigeria, only subordinate to the Nigerian constitution. This means that the provisions of the charter as they relate to international human rights are readily enforceable in Nigerian courts and have binding effect on Nigerian officials.

Nigeria has a triple legal framework to secure the right to freedom of expression and the press. The first strand is the International Covenant on Civil and Political Rights. The second is the African Charter on human and Peoples Rights. The third is the 1999 Constitution. The constitution obviously has the highest legal priority in Nigerian law. But the Supreme Court has established that when there are gaps in the constitutional language or where international human rights provides expansive articulation of the fundamental rights in the constitution, a judge may utilize such international norms to make the language of the constitutional right more effective. So, in a sense, these legal instruments reinforce themselves in the guarantee of basic rights of citizens.

I will quote the specific provisions of these instruments on the right to freedom of expression and the press. The African Charter on Human and Peoples Rights in Article 9 guarantees every person “the right to receive information. (2) Every individual shall have the right to express and disseminate his opinions within the law”. The International Covenant on Civil and Political Rights provides in Article 19 that “(1) Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public), or of public health or morals.”.

Section 39 of Nigerian Constitution 1999 guarantees every Nigerian “freedom of expression including the freedom to hold opinion and to receive and impart ideas and information without interference…”.

What is clear from these provisions is that the ambit of the legal protection of freedom of information in Nigeria is wide. The right to freedom of expression includes the ‘right to receive information’. So, we can argue that the right of every person in Nigeria to have access to information is an incident of the right to freedom of expression. The Nigerian Supreme Court in Director, SSS v. Agabkoba (1999) 3NWLR (Pt. 595) page 314 argued in similar instance of the right to a passport, that denying a citizen the right to own a passport is a violation of the right to free movement because ‘a passport is a necessary facility for the enjoyment of the right of freedom of movement’. This means that denying a citizen the right to own a Nigerian passport (as the Department of State Security did to Olisa Agbakoba, a leading human rights lawyer) is a violation of the right to freedom of movement expressly guaranteed under the constitution. In the same vein, access to information is a necessary facility of the right to receive and share information under the freedom of expression and the press.

It is important to note that the right to receive and share information is not a recent development in Nigerian democracy. It predates the current political dispensation. In fact, it has been as old as the Nigerian nation-state. That right is part of the Fundamental Human Rights contained in Chapter 4 of the Nigerian constitution. Together the fundamental human rights constitute the Nigerian Bill of Rights that has become a permanent part of Nigeria’s ever changing constitutional landscape. These rights entered Nigeria’s constitutional history in 1960 as a response to the agitations and anxieties of ethnic minorities at the eve of Nigerian independence. The colonial administration responded to these agitations by establishing a Royal Commission headed by Sir Willink. The commission, known as the Willink Commission, in 1958 issued a report that shaped the rest of Nigeria’s constitutional history. The Willink Report recommended a Bill of Right and special representation for minorities as counter-majoritarian devices that will reassure minorities and guarantee the stability of the new Nigerian republic. The proposed Bill of Rights, adopted from the European Convention on Human Rights, was incorporated in Nigeria’s 1960 Independence Constitution. It signals the importance of the right to freedom of expression and the press to political development in Nigeria that the Willink report specifically mentioned the right in its discussion on how we can manage ethnic division and entrench national unity. Nigeria was the first country in Commonwealth Africa to have a constitutional Bill of Rights. The fundamental rights provisions have remained largely the same in all Nigeria’s constitution up to the present 1999 Constitution.

Why Does Right to Information Matter?

Of course, we all can relate to the importance of information in our life as individuals and in our corporate existence as a people in a society, in a community or a nation-state. The most basic life would need a lot of information to flourish, starting from our domestic affairs to our external relations. Information is like the air that we breathe. But we often forget or downplay its importance. Just like many other things in life, there is an asymmetry to information. Some have more of it; and some have less of it. The degree of access and utilization of information affects the prospect of our human flourishing. Because of the consequences of the asymmetry of information, we have a growing clamor for equality of information or at least, equality of access and opportunity for people to access the information relevant and necessary for their livelihood.

Social scientists and philosophers have given considerable thought to how information matters. There are two perspectives about the importance of access to information to human beings in society. The first argues that information has intrinsic value to human beings. We value information for itself. We need to have access to information because we have natural desire to express ourselves and naturally, we would need to listen to others and shares their feelings and opinions. A fully functional human life is not conceivable without access to information. We need information in order to function as human beings. We need to hear each other’s story, not just because of what we will learn from them, but also because of our natural desire to relate with one another. The need to relate raises the need to hear and speak to others. That makes information central. So, in this sense, the right to information is a fundamental right that is essential to a meaningful human existence.  

We can also take an instrumental view of the importance of information. Here, the argument is that we need to have the right (and the access that it gives) to information because it enables us to perform important social functions. Information is important as a resource for activities we need to perform to make life more valuable. So, information is desired for the value that it brings. The instrumental conception of the importance of information further reinforces public policy argument in support of the right and access to information. We can bring the two conceptions- the inherent and instrumental values of access to information under the framework of the ‘capability approach’ championed by Indian Nobel Laureate in Economics, Amartya Sen and US Legal and Political Philosopher, Martha Nussbaum. The capability approach to development is a freedom-centered concept of development that looks at how development policies and practices advance human freedom. In his book, Development as Freedom, Amartya Sen pioneered a new paradigm of development that asserts that the objective and rationale for economic development are to advance the freedom of the people. Both Sen and Nussbaum consider freedom as a matter of enhancing capabilities and providing more opportunities for people to improve our wellbeing. The more choices we have they better for our wellbeing. We can improve our functioning as human being by enhancing our capabilities. A capability approach to freedom looks at the quality of our life from the perspectives of the choices we can make. Such choices require access to quality information.

So, we cannot think about a human development approach to economic and social policymaking except we take it for granted that the objectives and focus on development policies and programs is to enhance human freedom. To enhance human freedom means that the capability of people to function at a higher level of physical, emotional, and social engagement is being improved. This requires the exercise of choice in a rational and effective way. Making the right choices requires quality access to relevant information that will enable us to make the right choices that will improve our wellbeing. As I will show later, this approach has relevance to the practice of democracy and accountable governance.  

Freedom of Information Law in Nigeria:

The Freedom of Information law is the legislative framework to actualize the right to freedom of expression and the press. I have argued that the right to freedom of expression and the press implies the right to access to information. To freedom of information law facilitates the right of access to information by obligating public officers to avail citizens with relevant information they need for personal, social, and professional life. In 2011 Nigeria enacted a freedom of information law. The long title of the Act provides that the Act seeks “to make public records and information more freely available, provide for public access to public records and information, protect public records and information to the extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences of disclosing certain kinds of official information without authorization and establish procedures for the achievement of those purposes and; for related matters. The basis of the freedom of information law is to ensure access to information in the public domain.

Many people often presume that the Act merely deals with the obligation of public officials to provide information to the public upon request. That is not the only or even main obligation the Act places on public officials. The primary obligation of the Act is in Section 2 of the Act. It mandates all public officials to first ensure proper preservation of information in a manner that can be publicly retrievable. It states that A public institution shall ensure that it records and keeps information about all its activities, operations and businesses. (2) A public institution shall ensure the proper organization and maintenance of all information in its custody in a manner that facilitates public access to such information. (3) A public institution shall cause to be published in accordance with subsection (4) of this Section, the following information “. It goes ahead and provides about 16 categories of information that a public institution should mandatorily disclose to the public, including information relating to policies, resolutions and salaries and wages of its staff and management.

This obligation addresses the first stage of freedom of information, which is the obligation to make important information available to the public. This is a requirement of proactive disclosure. It does not require a special request for such information to be made available. The second stage of freedom of information is special request for particular information upon request. This is provided under Section 3 of the Act. Public officials have obligation to provide information at the request of an individual in line with prescribed forms and conditions in the Act.

The freedom of information is a great innovation in public administration in Nigeria. But the reality of the freedom of information regime is that it does not overcome all the hindrances to effective access to freedom of information. In the first instance, many government agencies and departments are not compliant with the obligation for proactive mandatory disclosures under Section 2. The failure to comply with Section 2 which mandates proactive disclosure increases the requests for information. Most of the information that are requested from public institutions ought to be proactively disclosed on their websites and other official platforms if there are enough administrative and executive directions on compliance with the Freedom of Information Act. For instances, many non-governmental organizations have unsuccessfully requested for salaries of legislators, or other public officials and details of public expenditures. Those requests would have been needless if the mandatory disclosures were made. This points to the absence of adequate administrative framework for the implementation of the obligations under the Freedom of Information Acts.

Data aggregated by Nigerian researcher, Paul Obi, shows that between 2017 and 2020, Premium Times filed a total 480 FOI requests. It received 30 positive response, 15 refusals and 435 no-response. Paul Obi also reports that the International Center for Investigative Reporting (ICIR) filed 616 applications between 2017 and 2020; received 143 positive response and 473 refusals. 

Freedom of Information and Democracy:

I mentioned the instrumental value of enhancing access to information to the development of capabilities for free and meaningful life. Information is a critical resource for the choices we make as humans. Choices are central to freedom. Without the ability to make the right kind of choices we may not enjoy the freedom that the constitution and international human rights promise us. So, at a personal level, the life of freedom requires freedom of information. Information should be available in accessible form for us to use them to improve the decisions we make about our wellbeing.

But there is a social dimension to the instrumental value of information. This relates to social cooperation in an arena of politics. Democracy is a system of government that is based on the right of the people to make choices. Democracy is famously defined as government of the people by the people for the people. The idea of democracy is that legitimacy of government system derives from the nature of its constitution. legitimacy is not conferred by results of governance but by how a government came to be. One of the leading political scientists of contemporary era, Robert Dahl, provides a set of criteria that defines democracy, which in the case of a large territory like a state, he calls ‘polyarchy’. He argues that a democracy has the following features

  • Effective participation
  • Equality in voting
  • Gaining enlightened understanding
  • Exercising final control over the agenda,
  • Inclusion of adults

This description of democracy has been widely accepted as containing sufficient criteria to assess a democratic society. it is clear that the right and access to information are the heart of these features of democracy. Take for examples the third feature of democracy: gaining enlightened understanding. It is difficult to participate in electing our leaders or setting agenda for decision making if we don’t gain enlightened understanding of the issues that affect public policy. As David Schultz puts it in his book, Election Law and Democratic Theory, “A third value that Dahl describes as essential for a democracy is enlightened understanding. It would be naïve to say that one has a right to vote or make choices but that one has no right to gather the information required to make rational choices. At some point along the way there is a belief or need for citizens to gather information, talk to others, share ideas, or even work together if the idea of effective participation will mean anything”. Except we have a right to gather and share information we cannot effectively participate in a democratic process, including voting.

Robert Dahls argues that democracy, though retaining its central idea of political equality, has changed from Athen to Rome and to modern state. The defining difference between democracy in small City-State, Athen and a modern country is territory and scale. In Athen, adult males gather at the village square and take turn to speak their mind. Everyone hears each other to gather the relevant information for his own contribution. But in a large society we cannot gather together in this fashion. We cannot exemplify our political equality by gathering in a townhall as often as required. This is the birth of representative democracy, which requires that we elect some and entrust them with the responsibility of making decisions on our behalf. This is why Schumpeter defined democracy as process of choosing those who will make decisions on our behalf.

The Role of Media Professionals in Protecting Democracy:

We know that democracy is a fragile system. Because of the impact of human nature and the realities of political leadership, democracy could fail or be in mortal danger. Examples across the world, including advanced democracies, tell the story of democracy often under threat or in crisis. Therefore, it is important that we focus on promoting and protecting democracy. We can argue that because of the nascency of democracy in Nigeria, we should focus attention on promoting democracy rather than protecting it. This argument sounds smart. But a deeper consideration reveals that protecting democracy even in its nascency is important because experiences in West Africa shows that democracy can easily fail before it starts. How would media professionals promote and protect democracy? I argue that it is by helping to cure the democratic deficit that is always present even in the best structured democratic systems.

Because of the expansive geography of modern states, we cannot have the direct democracy of Greek City-States like Athens or the Roman provinces like Venice. This means that democracy needs to be mediated. This brings to the fore the role of the media. Citizens need quality information to be enlightened so as to effectively participate in choosing leaders and participating in setting the agenda for public governance. No individual has the capacity to gather all the pieces of information he or she needs to become an effective citizen and carry out the civic duties that sustain democracy. The citizens of Athens cannot do today what Pericles said they did in the direct democracy of Athens. According to Pericles, “Our ordinary citizens, though occupied with the pursuit, are still fair judges of public matters… and instead of looking on discussion as a stumbling block in the way of action, we think it an indispensable preliminary to any wise action at all”. Citizen engagement with public discourse is what sustains democracy. In Athens, the citizens meet at the square; in a modern society, they will rely largely on the media to provide the basic information needed to make public decisions.

There is no arguing the importance of the media in sustaining democratic and accountable governance. At the earliest period of the US democracy, Thomas Jefferson recognized the importance of the media and information generally to democracy and argued for exemption of ‘journals of opinion’ from custom duties because they facilitate democratic governance.  It is in the same spirit that James Madison in the Federalist Papers No. 47 and 49 argued that “all governments rest on opinions”. Democracy is built on opinion, informed opinion. Where citizens meet in a place, it is easy to hear arguments and form opinions. That become informed opinions. In a large country where citizens are engaged in different activities that deny them the opportunity to listen directly to one another and form reasonable opinions, then there is need for a special group who will undertake the responsibility of aggregating and presenting such opinions such that citizens can have a basis to decide for themselves on the management of the commonwealth.

The modern logic for recognizing the role of media professionals in promoting and protecting modern democracy is the need to overcome ‘democracy deficit’. Democracy deficit occurs in a system, no matter how democratic in conception, if, for whatever reasons, it is difficult for the people to control the elected representatives. This is a present danger in representative democracy because of the scale of society and the complexities of its management. From the Schumpeterian perspective, election is about selecting those who will make decisions on our behalf. Every four years in Nigeria we go to the polls and select the persons who are authorized to make decisions on our behalf for four years. We do not usually know what these our agents are thinking. We do not know what evidence and facts weigh on the decisions they make. We often cannot make them consider what we think should be the considerations for the decisions they make. Yes, the constitution says the people are the sovereign; the people govern themselves. But after elections, the people are marginalized and do not have the capacity to shape decision making in their commonwealth.

This is why the media plays a great role. The media helps deal with democracy deficit by providing citizens with critical information and analyses to enable them to effectively play the role of sovereigns and know when their elected representatives and trustees are serving other interests, not the interests of the people. Without the media playing such role, the complexities of modern administration will drown the average citizens and they would not protect democracy through enlightened engagement with political leaders. We often argue that democracy failure starts from lack of robust citizen engagement with political affairs. But we fail to note that this failure starts from another failure: the failure to provide relevant information and analysis to enlighten citizens and prepare them for civic actions.

Modern society is based on specialization. This is because of its complexities and several separations. The workload of the bureaucratic state is overwhelming that even experts struggle to make sense of it. Ordinary people would not bother to engage in the heavy lifting of ferreting out critical information that are necessary to understand the nature of public affairs. This means that there must be members of society who have the expertise and incentive to dig deeper into these bewildering details to construct a narrative that helps the rest of the citizens make sense of its all. The media is now the segment of the society that has specialized in skills and has the appropriate incentives to take such a deep dive required to make sense of public affairs.

The role of the media and its professionals in helping citizens make sense of public affairs and therefore prepare them for the civic engagement necessary to promote and preserve democracy is the reason Thomas Jefferson made the seemingly naïve statement that has been much quoted: The functionaries of every government have propensities to command at will the liberty and property of their constituents. There is no safe deposit for these but with the people themselves; nor can they be safe with them without information. Where the press is free, and every man able to read, all is safe.Jefferson placed so much faith in the press because it is the master of information. Without the expertise, the incentives, and the opportunities to generate and broadcast knowledge and informed opinion, the media cannot be the savior of democracy.

Freedom of information and Democratic Accountable:

One way to ensure that democracy takes real roots and survive in Nigeria and in any other country is through accountability. Accountability is a buzzword. It is a mantra. Every government claims to be accountable to the citizens but belies accountability in its performance. If we cannot secure accountability of governance, then we cannot secure democracy. But it is truly difficult to secure accountability because of the fundamental problem of democracy deficit. It is fanciful to claim that the leaders are accountable to the led if you do not provide a framework that creates both the incentives and the possibilities of accountability.

There are many dimensions of accountability and different institutions that deliver each dimension of accountability. There is formal as well as informal institutions of accountability. There are vertical and horizontal institutions of accountability. In practical governance terms, we have the legislature as a center of accountability in the form of legislative oversight, the anticorruption agencies (including the Office of the Auditor General) in terms of control of corruption, and social institutions like the media in terms of general accountability. These institutions operate according to their internal norms and social regulation. Together they constitute institutional framework for accountability.

Take for example, legislative oversight. The 2005 report of the United Nation Economic Commission of Africa argues that African legislatures are notorious poor in expertise and institutional capacity to perform their responsibilities to promote accountable governance. Part of this institutional incapacity relates to the fact that during military rule in Africa the legislature was dismantled so it could not develop the competencies to fulfill its duties. How can legislators effectively oversee the executive branch of government if they cannot generate the relevant information to assess the performance of government. Such an underdeveloped legislature like what we have in Nigeria and many African countries would require the support of a strong and capable media to generate the relevant information and analyses it needs to check an abusive or corrupt executive.

Therefore, the media plays a key role to strength the capacity of a weak legislature as we have in Nigeria to fulfill its democratic function of oversight. Because the media that generate the information and informed analyses that the bureaucracy of the legislature cannot generate, the legislature leverage on media report to attempt a functional oversight function. additionally, where legislature oversight fails because of the lack of capacity of the legislature, the media has to step in to offer an oversight of the executive. So, the media is important both to provide the legislature with information and analyses it cannot generate and also to fill the vacuum that an incompetent legislature has created.

How Editors Can Optimize the Freedom of Information Law to Promote Accountable Governance:

In the context of the important role of the media and its professionals in promoting accountable democracy, how does the freedom of information assist the media and what can be done to optimize its utility? We have noted that the law has tremendous potentials and also some shortcomings. The most important point is that the law is not been effectively used. First, public officials have not executed their primary responsibility under the Act, which is to ensure mandatory disclosures of the important information required under Section 2 of the Act. This is an obligation that is not contingent on request or further administrative and execution directions. It is a violation of the law not to comply with this prescription of the law. The obligation help in the preservation of public records and helps Nigeria development a culture of preserving records and documents.

If the obligation under Section 2 of the Act is complied with, there will be little need to request for information. Most of the requests will not be filed because the information required would be easily accessible from the website of other official platforms of the agency or establishment. This is save institutions and individuals the resources spent in filing request and prosecuting cases in court. The editors need to take seriously the responsibility of advocacy to force the mandatory disclosure. This could be in the form of strategic litigation or through high profile lobby and advocacy for an executive order from the President to enforce this duty.

The freedom of information law is not to build a culture of public reason required to protect democracy. The law is important to create the access. But the capacity to access information is also important. As society gets more complex and technocrats replaces conventional politicians as policymakers, we should expect that public affairs will require high intelligence to provide effective control on those that exercise political power. The knowledge quotient required to understand many of the information required to exercise enlightened citizenship is high. This means that editors should ensure that their reporters are of a higher intelligence and professional competence to know the right questions to ask to gain insight into public affairs. We are witnessing in developed society a greater professionalization of new rooms and editorial boards with subject matter experts. The reason is to match knowledge with knowledge in the fight to hold public official accountable. It is the responsibility of editors to explore opportunities to promote knowledge and expertise in the newsroom and editorial boards.

We recognize that the incentive structure in Nigeria may not support the level of investigative journalism that we need to promote and protect democracy. But, while we pay attention to social and economic realism of media ownership and management in Nigeria, we can crowdsource legal expertise to provide additional protection for reporters and other media professionals who may run risks while being investigative. It is in the context that we may need to revisit the tradition of the past where human rights lawyers are assembled to undertake free legal defense of reporters who are at risk of state repression and undertake strategic litigation to obtain standard-setting judicial norms that improve the environment of media practice and freedom of information in Nigeria.

Conclusion:

The heart of the matter is that information is important for democracy and for development. information is important for any effective commitment to human development oriented economic and social policies and programs. We need to know what the people need to make the right decision on policy and program. The people need to know the various policies and programs of government to be able to make the right choices that improve their lives. Political leaders needs information about the peoples living condition and the impacts of policies and programs of government to be able to revise or discard such policies. Amartya Sen illustrates the importance of information by contrasting economic fortunes of India and China. Whereas India is generally perceived as chaotic democracy; China is perceived as a well-ordered autocracy. Sen argues that whereas China has witnessed devastating famine, India has not. And he puts it to the fact that a democratic regime has a more effective information system that give public officials early warning of failed policies before they lead to disastrous outcomes. Autocracies do not have such system. Therefore, they cannot avoid terrible outcomes. In spite of what we may think of this analysis, what stands out is that information is important for the functioning of a democracy. Unless, we guaranteed the people access to relevant information and we use information to generate insights and create public discourses, we may not have the enlightened engagement that undergirds democracy. Above al, if we don’t have freedom to access and use information, we may not be able to control abusive or corruption public officials, thereby endangering democracy.

The media has a responsibility to ensure that the regime of freedom of information works well. “Where the people can read and write and the press is free, democracy is safe”.

Author: Imoh Robert

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