Monday, April 11, 2016

Making the FOI effective with Niger Delta Institutions

After I read Innocent Edemhanria’s contribution last week titled Can Niger Delta Institutions Ever Be Effective, my mind quickly raced to a workshop held recently by the Centre for Social Justice, CSJ. The Centre for Social Justice was seeking to do a step by step review of the Freedom of Information Act, 2011, via approaches and processes to be used in demanding fiscal information from public institutions. Edemhanria’s piece was essentially a call on government to increase allocation to the Niger Delta Institutions like the NDDC, the Ministry of the Niger Delta Affairs and all the development agencies in the South-South. He said that his suggestion was based on work already carried out by the Africa Network for Environment and Economic Justice, ANEEJ.  ‘The share of the 13% derivation fund should be increased to at least 60% across board. This will require amendments to laws setting up the oil and gas commissions. While this is being proposed, the institutions themselves should be prepared to cut down on recurrent expenditure and devote a huge chunk of their budget to capital expenditure’ the writer said. 

These are very valid summations but the part of Edemhanria’s piece that brings the CSJ workshop to sharp focus was in his call to Niger Delta Development institutions to be a little more open with information on their procurement processes and of their budgets.  For instance, anyone seeking to analyze the budget of these NDIs cannot get anywhere, and this is in spite of the fact that the Freedom of Information Bill had already become an Act in 2011.  If you were seeking information on the budget of some public institutions, public official often use all kinds of tactics to wriggle out of not providing that information. First they tell you that your letter of request has not been properly addressed, not properly couched or that the information you seek is not within their jurisdiction. In 2013, I got wind of the gist that former governors still receive salaries, pensions and emoluments that are inconsistent with the provisions of the Constitution.  So I met the chaps at the Revenue Mobilization and Fiscal Mobilization Commission in Abuja. They only began to listen to me after I verbally invoked Section 1 of the FOI Act. Thereafter, the man in charge produced certain documents indicating details of Federal Allocations to the Federal State and local tiers of government. Upon my insistence that he was deliberately with-holding information on the ‘salaries’ of former governors, and that I would make his intransigence public, he reluctantly directed me to the office of the Accountant-General of the Federation, putting me through a promise that I was not tell them he was the one who directed me there.  In a letter, FD/OAGF/ABJ/206/T/ /DF, and dated 6th March, 2013, and signed by SA Zubairu, a deputy director of fiscal accounts in the Office of the Accountant General told me that they were not in charge of payment of salaries and personnel cost of emoluments of former or serving state governors, and therefore were unable to provide information I needed. This may be seen as a miscarriage of the process but there have been other instances, especially with the Nigerian Electricity Regulatory Commission under Sam Amadi, where we had gotten results.  It is sad that three years after the Accountant General of the Federation’s office made it clear to me that payments are not being made to past state governors, the EFCC has come out with information that former Kwara State governor Bukola Saraki now Senate President is still on a salary as governor of Kwara State.

But incidents such as the one I enumerated above, together with the fact that some judges have not even read the FOI and as such are hostile to cases involving it have made it impossible for any landmark case where the FOI has been used to ferret information from public institutions. Some stakeholders as well have not read the FOI, particularly because of the allegation that it is replete with legalese and that the rigour of reading and understanding it is best left to the lawyers. 

According to information provided by conveners of the CSJ workshop, the Freedom of Information Act (FOIA) is made as a law to liberalize access to public information, to grant a right of access to individuals and organisations and to place specific duties on public agencies to make the information available. They said that the FOIA is most relevant to fiscal governance in terms of providing opportunity for information about budgetary expenditure, contracts and even discretionary funds to be in the public domain.

But there are certain issues that we must interrogate so as to untangle ourselves from the seeming failure of the FOI. One, in the event that an information request has been refused, should the courts be the last option considering the fact that information being sought is needed to assist with short-term research needs of an NGO/CSO? The FOI Act says that I have the right to go to court if an institution like the NDDC refuses to give me information on the budget. Aren’t there other things I could do apart from the cumbersome option of putting the law through the mill because I need information at the snap of my fingers? Secondly, since the FOI Act is a Federal law, what is the need to ‘domesticate’ it? Laws to be domesticated are foreign laws which have not been legislated upon by local law-making body like the National Assembly.  My approach to this question of domestication of a federal law indicates that there are still inconsistencies with the understanding of the application of the FOI, especially with the ‘domestication’ of the Act at state level. Even though lawyers attempt to establish a dichotomy between ‘human rights’ and ‘fundamental human rights’, what seems to be the consensus was that a law can be ‘domesticated’ if the issues leading to the request for information are seen from the angle of human rights and anti-corruption. That appears to be a valid input but if we continue to hold that old argument, that certain information is exclusive, or concurrent or residual, it makes nonsense of the FOI Act, 2011. 

Some lawyers believe that it is not always expedient to rush to court if an application for information fails.  They say that information seekers can take quasi legal options like asking for an order of mandamus, a declaration of rights of parties to that information. The fundamental issues revolve around how stakeholders can facilitate designs of CSO interventions that will lead to changes and improvements in service delivery, increased transparency and value for money.

If we take the Niger Delta Institutions into perspective, we believe that challenges currently being experienced with respect to obtaining information can reduce significantly if we combine other sources of getting info together with the provisions of the FOI. I cited my case with Sam Amadi’s NERC earlier. All I needed with getting the NERC to listen to me was in knowing my rights and privileges as an electricity consumer. How many of us Nigerians know their rights under the law. How prepared are we to challenge a breach of our rights and privileges? In my case, I didn’t sit on my armchair and critique. I made a move.

To make the NDIs effective, we must continue to track budgets, organize town hall meetings and use the FOI to track all budgetary allocations, and review all known projects. Believe it or not, we must teach CSOs and private citizens interested in getting information from public institutions how to write the sort of letters that compel attention. I discovered at the CSJ workshop that there are many challenges in that area as well.  

MajiriOghene Etemiku