Using FoI Act to monitor campaign finance, COVID-19 funds

 

“The COVID-19 pandemic provides sufficient motivation for all of us to be engaged in the governance process because if we are not vigilant and the funds meant for COVID-19 response are stolen, misappropriated, misapplied or in any other way diverted to other purposes, then the objectives of the response will obviously not be achieved. In such a situation, the consequences are better imagined than experienced”

– Edetaen Ojo, Executive Director, Media Rights Agenda

 On August 5 and 6, 2020, two media centred-civil society organisations pooled resources together to build the capacity of some Nigerian journalists from both print and electronic media on how to use the Freedom of Information Act to demand transparency and accountability in the management of COVID-19 funds as well as campaign finance. The two organisations, International Press Centre and Media Rights Agenda were able to conduct the workshop with funding support from the European Union. Among the participants were the chairmen of Lagos and Edo chapters of Nigeria Union of Journalists as well as the chairperson of Oyo State chapter of National Association of Women Journalists.

The resource persons at the two-day workshop were: Executive Director of Media Rights Agenda and a veteran journalist, Mr. Edetaen Ojo, who presented a paper titled, “Understanding the Key Features of the Freedom of Information Act, 2011”, Executive Director of International Press Centre, who was also a former president of National Association of  Nigerian Students and ex-Chairman of Lagos Chapter of NUJ, Mr. Lanre Arogundade, who made a presentation on “The Role of the Media in Ensuring Good Governance and Government Accountability”. A freelance investigative journalist, Ms. Tobore Ovuorie presented a paper on “Using Investigative Reporting Techniques to Monitor Compliance with Campaign Finance and Political Expenditure Regulations” while another veteran journalist and Executive Director, International Centre for Investigative Reporting, Mr. Dayo Aiyetan, made a presentation on “Deploying the FoI Act and other Investigative Tools/Methodologies in Reporting Covid-19 Funds in the Public Interest”. I was also privileged to present a paper entitled, “Understanding and Reporting Campaign Finance and Political Expenditure Frameworks and Issues.”

There is no gainsaying the fact that journalists need training and retraining on their job in order to make them more proficient.  This was one of the goals of hosting this workshop. The ultimate aspiration of the organisers was to contribute to improving government accountability to citizens across board.  The workshop was actually an eye-opener in the sense that it provided an opportunity to understand and appraise the use of the Freedom of Information Act which was signed into law by former President Goodluck Jonathan on May 28, 2011.

It is fascinating to know that there are currently 23 countries in Africa with national FoI laws and that South Africa was the first country on the continent to adopt such a law in 2000. Globally, there are currently about 125 countries with national FoI Laws. Sweden’s Freedom of the Press Act of 1766 is the world’s oldest FoI law I found it interesting that every public institution is required to designate an FoI Desk Officer who should not be below the rank of an Assistant Director according to the implementation guidelines from the office of Attorney General of the Federation and Minister of Justice.  This is the official to whom applications for information from members of the public should be directed.  Every public institution is also required to publish the title and  address of this appropriate officer to whom applications for information under the Act should be sent. Unfortunately, not all public institutions have complied with this nine year into its operations.

Did you know that public institutions must respond to applications for information within seven days, whether or not they are granting access to the information requested? There are only two circumstances when the timeframe for response provided in the Act may be extended by a further period of no more than seven more days. These are when the information requested is voluminous and when there is a need for consultation.

It is quite revealing that each public institution must submit to the Attorney-General of the Federation by February 1 of every year, a report on the implementation of the Act covering the previous fiscal year and that each public institution must make the report available to the public by different means, including by telecommunication and computer, or if computer and telecommunications means have not been established by the institution, by other electronic means.  The AGF is also required to make each report, which has been submitted to him by every public institution, available to the public. The reports should be made available in hard copies, online and also at a single electronic access point. Sadly, much of these are being observed in breach by public institutions. The AGF is required to submit annual reports to the National Assembly on how the law is being implemented and complied with. How much compliance do we have with this provision? I did a check on the website of the Federal Ministry of Justice yesterday. While there is a Freedom of Information Portal, there was no record of compliance with the FoI provisions by public institutions. A click on the icon titled “Analysis of FOI Requests and Responses” drew blank,

Instructively, not all information is to be given on request. The exemptions include: Information which may be injurious to the conduct of international affairs; Information which may be injurious to the defence of Nigeria; Library circulation and other records identifying library users with specific materials. Others include, Information which may interfere with law enforcement investigations or be injurious to the security of penal institutions; Information which may undermine a person’s right to fair trial or fair hearing in actual or reasonably contemplated proceedings before a court and Personal information about the private lives of individuals, whether they are public officials or private citizens.

Also exempted are information pertaining to test questions, scoring keys and other examination data used to administer an academic examination; trade secrets and commercial information obtained from a person or business that are proprietary, privileged or confidential; Information subject to Solicitor-Client privilege; Doctor-Patient privilege; Journalism confidentiality privileges; and other professional privileges conferred by law. It is gratifying to note that where there is an overriding public interest involved, even exempted information can be disclosed. An applicant who is refused access to information may apply to a court to review the refusal within 30 days after he or she is refused or deemed to have been refused. And the court is at liberty to extend the period of 30 days before or after its expiration. The court equally has the power to examine any record under the control of a public institution to determine if it falls within one or more of the exemptions in the Act.

Wrongful denial of access to information attracts N500,000 fine. The Act also makes it an offence for any officer of a public institution to willfully destroy or falsify any records before releasing the record to any person applying for it.  It prescribes a minimum of one-year imprisonment for the offence. Unknown to many, the FOI Act supersedes the provisions of all other Acts, Laws or Regulations, except the Constitution and those laws entrenched in the Constitution. It supersedes the Official Secrets Act, the Evidence Act, the Criminal Code, the Penal Code, the Federal Public Service Rules, etcetera. These instruments cannot be used to limit its scope or application. Noteworthy also is the fact that access to information, records and documents is not free of charge. But the fees that can be charged are limited to standard charges for the duplication of documents and for transcription, where it is necessary to transcribe a record.  No other form of fees can be charged under the FOI Act.

My presentation raised six issues on campaign finance and political expenditures in Nigeria. They are: Non-compliance with campaign finance regulations by registered political parties; Exemptions granted by Electoral Act 2010, as amended in S. 91 (8) on what should be computed as campaign finance; Lack of proper enforcement by INEC; Gross abuse of State Administrative Resources by chief executives; Abuse of Companies and Allied Matters Act by some private companies and the need for campaign finance reform e.g. S. 91 subsections 2 – 7 dealing with campaign finance ceiling for candidates.

While the participants were excited about the opportunity and pledged to make use of the knowledge and skills received at the meeting, it remains a wake-up call for Nigerian journalists and indeed civil society organisations to hold public institutions to account using the FoI law.