ABSTRACT
Freedom of Information Act is a new legislation passed into law in 2011 and in this work, it is concerned with the legal appraisal of its implementation since 2011 and the limitations, and challenges facing the implementation of the Act like the mischievous intention and actions of the media, the politicians and political parties who in one way or the other tries to deviate or abruptly abscond from the proper use of the Act so as to achieve their mischievous political desire and objects. The actions of political parties and consequences of partisan politics to effective utilization and the implementation of the F. O. I.A 2011. Considering the fact that Nigeria political system in agreement with the democratic system of government or putting into practice the democratic system of government, the need for freedom of information to promote the collection of the opinion of the majority, promotion of unity and effective representation of the government and all other basic purposes or advantages or benefits that is being derived from the existence and implementation of freedom of information as guaranteed by the Act.
The benefits of the freedom of information Act to individuals, government administration, political opposition parties, ethicizing the actions and decisions of the incumbent government by both the subjects, the ruled and the opposition parties and the criticisms which should be necessary for the effective performance and delivery of the government, role of the Freedom of Information Act (F. O. I. A.) in the protection of the interest of the minority.
Limitations of the substance law, as provided by the F. O. I. A. the proper secreting and subjection to meticulous study and analysis and its limitation in comparative analysis with other similar Common Wealth Anglophone jurisdictions. What basics should be contained in the Act for its proper implementation and which is not contained thence considering its similar legislation in other jurisdiction of common wealth Anglophone Countries. Comparison with similar acts in common wealth countries such as that of Ghana, access to information Act of Sierraleone etc.
Future changes capable of limiting or eliminating the Freedom of Information Act like the intervention of the military in cases of prevalent political uses or anarchy, corruption and other related challenges resulting into the military administration which do not acknowledge fundamental rights of individuals and the need for the freedom of the press expression as provided by 1999 Constitution. Section 39.The extra constitutional system of government which could suspend or modify the 1999 constitution or the modification, consequence of which would do away with the freedom of the press of expression and other basic fundamental rights, other non- military extra constitutional system of government like fascism, totalitarianism, authoritarianism, Nazism etc. where an individual has no fundamental rights and are not allowed to contribute in their governance and where the government owns the individuals as its properties, here, there is no fundamental right and consequently no freedom of information Act. Other limitations and challenges facing the implementation of the Act like deviation of the mass media and political parties conflicting interests and partisan politics and mischievous acts of politicians limiting the implementation of the F. O. I. A. and adequate remedies which would and in the proper implementation of the freedom of information Act 2011. Such as legislation aiding the implementation and the administrations of the act, discipline and fight against corruption, adequate separation of powers and doctrine of checks and balances to ensure that the system (i.e political system) is free from being dominated by one arm or organ of government and ensuring that each arm or organ of government does not exceed the powers allocated to it by the constitution on the basis that power corrupts and absolute power corrupts absolutely and by separation of powers, preventing dictatorial tendencies capable of dominating the implementation of the F. O . I. A. and emergence of the dictators.
In the comparative analysis of the jurisdiction of the F. O. I. A. 2011 in Nigeria and American jurisdiction and Canada jurisdiction as similar Anglo-phone Common Wealth Countries.
TABLE OF CONTENT
Title Page
Certification
Dedication
Acknowledgement
Abstract
Table of Contents
Table of Cases
Table of Statutes
List of Abbreviation
CHAPTER ONE
- Introduction
1.1 Background
1.2 Statement of Problem
1.3 Research Question
1.4 Aims and Objectives
1.5 Research Method
1.6 Significance of Study
1.7 Limitations and Scope
1.8 Definition of Terms
CHAPTER TWO
2.0 Comparism of the Freedom of Information Act F.O.I.A. with other freedom of Information Acts in common wealth jurisdictions.
2.1 ComparismofF.O.I.A. with Canada jurisdiction
2.2 Comparism of the F.O.I.A with American jurisdiction
2.3Limitations of the F.O.I.A and re- energizing sec 2
2.4 Comparism of the F.O.I.A 2011 with the Ghana F.O.I.A jurisdiction.
2.5 Comparism ofF.O.I.A2011 with the fight to Access Information Act 2013 Sierra Leone
CHAPTER THREE
3.0 Essence of freedom of information to democracy Cantwell V connecticut
3.1 Democracy
3.2 Government accountability
3.3 F.O.I.A as an aid providing a
- Representative Government
- Promotion of Unity
- Opinion of the Majority
CHAPTER FOUR
4.0 Challenges facing the legal applicability of the F. O. I. A. and remedies.
4.1 Deviation of the mass media from the F. O. I. A.
4.2 Partisan Policies
4.3 Defamation Section 373 Criminal Code
4.4 Militarycoup’ detat and other extra-constitutional system of government
CHAPTER FIVE
5.0 Conclusion, Recommendation and Bibliography
5.1 Conclusion
5.2 Recommendation
5.3 Bibliography
Table of Cases
Agoaka v Ejiofor (1972) 2 ECSLR 109
AG Federation v Guardian Newspapers (1999) 9 NWLR(Pt. 618) 187
Benson v West African Pilot(1966) NMLR.3
Byrne v Dean (1937) 1KB 818 CA
Cantwell v Connecticut 310 US 296
Lakanmi and another v AG Western States (1971) 1 UILR P.208
Mohmoh v Senate (1987) 4 NCLR 269
Nithenda v Alade (1974) ECSLR 109
Pakistan v Dosso (958) 2 PSCR 180
RansomeKuti v AG Federation (1985) 2 NWLR (pt. 6) 708 P. 211
R v New bould (1956) 2 Q.B.102
R v Llewellyn-Jones (1966), 51 CR
Thabo Mmeli v R (1957) I WLR 228 PC
Tolley v Fry (1931) AC 333 HL
Uganda v Commissioner of Prisons (1966)EALR p.180
Uzoukwu v Ezeonu (1991) 6 NWLR (Pt 200) 708
Table of Statutes
1989 Constitution
Decree No.1
1999 Constitution
Section 39 ———-
Section 45 —–
Section 1 (3) ——–
Section 1 (1) ———
Section 5 (1) ———-
Decrees 1984 to 1987
Decree 1987 no. 19 ———
Decree no. 4 of 1984 ——–
Criminal Code
Section 373 ———-
Section 375———
Freedom of Information Act 2011
Sections 11 and 12 ———-
Sections 14 to 17 ————-
Section 1 (1) ——————-
Section 3 (1) (b) —————
Section 7 (1) ——————
Section 6 ———————
Section 8 ———————-
TABLE OF ABBREVIATION
AC: Appeal Court
AIPPA: Access to Information and Protection of Privacy Act
CC: Criminal Code
CFFN: Constitution of the Federal Republic of Nigeria
EALR: East African Law Report
ECSLR: East Central State Law Report
FOIA: Freedom of Information Act
KB: Kings Bench
NCLR: Nigerian Constitutional Law Report
NMLR: Nigerian Monthly Law Report.
NWLR: Nigerian Weekly Law Report
UILR: University of Ife Law Report
QB : Queen’s Bench
SC: Supreme Court
WLR: Weekly Law Report
CHAPTER ONE
INTRODUCTION
- Background:
The background is the analysis of the quality and value of the implementation of the Freedom of Information Act considering the provisions of the Act, social and political factors in the contemporary Nigerian society.Freedom of Information Act is basically from a section of the fundamental rights as provided on the constitution 1. From the constitution itself, learnt that fundamental rights are those inalienable rights of citizens which are justiciable parse. Fundamental rights are contained in the constitution 2 Sections 33 to 44 1999 Constitution. Here, we are emphatic about Section 39 of the 1999 Constitution on which provides for the right to freedom of expression and the press, which states that every person shall be entitled to freedom to hold opinions 3 and freedom of Information Act 2011 has its not from Section 39 of the 1999 Constitution. It is developed from the natural Law School of [1]Jurisprudence. Fundamental rights are usually eliminated during the military administration and consequently, the government in the military administration does not acknowledge right to freedom of expression and the press, as provided in 1999 Constitution and no statue recognizing freedom of information following the dictatorial nature and tendency of a military administration 4.
Section 39 of the 1999 constitution provides that
- Every person shall be entitled to freedom of expression, including freedom to held opinions and receive and impact ideas and information without interference.
- Without prejudice to the generality of
Subsection (1) of the section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions.
Provided that no other person, other than the Government of federation or a State or any other person or body authorized by the President on the fulfillment of condition and laid down by an Act of the National Assembly, shall own, establish or operate a television a wireless broadcasting station for, any purpose whatsoever.
- Nothing in this section shall invalidate any Law that is reasonably justifiable in the democratic society.
- For the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of court or regulating television or the exhibition of the cinematography, films or
- Imposing restrictions upon persons holding office under the Government of the federation or of a state, members of the armed forces of the federation or members of the Nigerian Police Force or other
Government of Security Services or agencies established by law.
Limitations to the fundamental rights are provided in Section 45 of the 1999 Constitution5 and states that
Nothing in Sections 31, 38, 39, 40 and 41 of this constitution5 shall invalidate any law that is reasonably justifiable in the democratic society. In the interest of defence Public Safety, Public exceptions to[2] fundamental rights section 45 of the 1999 Constitution 5 order, Public Morality or Public Health or
For the purpose of protecting their rights and freedom of other persons and for the purpose of declaration of a state of emergency[i]
Ordinarily the Military Administration does not acknowledge fundamental rights hence no need for any statute regulating Freedom of Information except Military Government by General Ibrahim Babaginda which was partly Civil and partly Military which acknowledge fundamental rights as provided in chapter IV 6[3] while the constitution under General Ibrahim Babaginda was created by Decree no. 1 of the 1989 Constitution. Complying to the transition to Civil Rule 7. The military through the use of suspension and modification system derives the court jurisdiction and in some cases, the entire constitution or some basic parts of the constitution are suspended. Decree no. 4 of 1984
Fundamental rights are interpreted to the greatest stretch and right to Freedom of Expression and the Press have been frequently trampled upon by various Executive Arms of Government at different times exemplified by the notorious Decree no. 4 of 1984 aimed at gagging the press 8 Mohmoh V Senate (1987) 4 NCLR269.
Challenges up to the present day still face the Freedom of Information and hence the implementation of the Freedom Information Act 2011 such as the deviation of the media from the F.O. I.A partisan politics and remedies such as imperative legislations to compel the media to the Freedom of Information Act is highlighted here. 9
An appraisal of the F. O. I. A is also highlighted her, an appraisal of evaluation of the F. O. I. A. 2011 by comparative analysis of F. O. I.A 2011 Nigeria’s Jurisdiction with the jurisdiction of the Common Wealth Countries such as American State, Canada, Ghana, and Sierra Leone.
- Statement of Problem:
Here we are concerned about the appraisal, judgment of the value and evaluating the quality of the Freedom of Information Act 2011 and its implementation so far and then knowing the defeats in the Act after conducting research to know the area of problem or challenges facing the F. O. I. A and its implementation and the problem so far is including the mischievous intention of the politicians and some media houses resulting to a purported or illegitimate implementation of the F. O. I. A, and their deviation from the F. O. I. A.
- Research Question:
The research question here is concerned with the appraisal and simply the judgement by comparative analysis with the F. O. I. A 2011 jurisdiction and that of the other jurisdictions in common wealth countries which are Ghana and Sierra Leone.
It simply should state, what is the value judgement, quality or analysis of the value of the freedom of information Act 2011.
1.4 Aims and Objectives:
This work will aid and facilitate the effective implementation of the Freedom of Information Act 2011, help prevent the denial of right to freedom of speech and expression and prevent circumstances that would result into military intervention in thye Nigerian political system and other extra constitutional systems of government which would lead to denial of right public access to information which is the sole purpose of the F.O.I.A.
This work will also help provide guidelines to ensuring that mischievous acts of politicians and partisan politics in Nigerian political system does not hinder public access to information.
Research Method
Research conducted and online sources so as to know the current positions of law in the judgement of the quality or the evaluation of the F. O. I. A. scholarly and philosophical works gotten online, library and by research.
Significance of the Study:
From this work, one should know that it is really pertinent to guarantee and promote freedom of speech and expression, prevent every possible chances of military taking over of power and the politicians by using the media houses to achieve their political propaganda and the others including the media.
Significance of Study:
Notable persons whom to the interest of democracy and Public Opinion should be mandated to use the F. O. I.A now deviating from the use of the Act.
To achieve the standard of developed countries Nigeria as a developing third world country correctly following the footsteps of the developed countries should emulate the provided remedies to challenges facing the F. O. I. A and its implementation as provided by this work.
Scrutinizing the information consumed by the public from the F. O. I. A so as to ensure that it is free from any defamatory statement or possible chances of persons defaming other persons or institutions, bodies with a mischievous intent.
Limitation and Scope
This work is limited to the findings, research and enquiries concerning the freedom of information Act specifically the comparative analysis of the act with other jurisdictions of common wealth countries and pin pointing from the comparative analysis limitation of the act and its limitation in implementation and the legal assessment of the value of the F. O. I. A, the limitation which might confront the act and its implementation in the future present challenges facing the F. O. I.A which includes the their acts of the media houses and politicians who in one way or the other tries to circumvent the law by using the F. O. I. A achieve their political propaganda. Politicians here are always those guilty of the violation of the sub-structure of F. O. I. A which is right to freedom of Press and Expression and the consequences of the media deviating from the legitimate utilization of the F. O. I. A defamation as provided in the communal code and the consequences of a defamating matter contained in the information to be consumed by the public, the military and civilian dictators who through their extra- constitutional acquisition of power and consequent violation of right to freedom of speech and expression, deny the right of the public to access and have in possession public information relating or not relating to the government or government institutions since most extra constitutional government suspends the provisions of the constitution providing fundamental right as the extra constitutional government administration acquires power not in accordance or agreement of the provisions of the constitution. Prevent the possibility of the extra constitutional government from emerging since the military claim to take over power to bring discipline, peace, harmony and a corrupt free government, corruption should be fought by civilian administration so that the military will not see any reason to seize and control power and then prevent anarchy or chaos so that the military will not intervene to bring peace and harmony. Based on the principle that power corrupts and absolute power corrupts absolutely, to prevent extra constitutional government from the civilian rule, then there has to be adequate separation of powers and checks and balances so that no organ or arm of government can subdue any other but rather by the doctrine of checks and balances acts as a watchdog to each other to ensure that no one exceeds the limit granted to it by the constitution.
In this scope and limitation as well as we have to give concern to the essence of the F. O. I. A to democracy and its theories including interest of the minority opinion of the majority, government accountability, promoting democracy in general and promoting unity in a federating state like Nigeria. Including in the remedies to challenges facing the F. O. I. A. and the implementation of the F. O. I. A. Such remedies includes legislations implementing or mandating the use of the F. O. I. A. where the mass media and its personnel are being used by mischievous politicians to achieve their political interest at the detriment of the public at large and the defamation as contained in the criminal Code Section 307 and consequences of defamatory statement being contained in the freedom of information Act and as a result the limitations and scope of the study have shown the masses they need to prevent or avoid defamatory statement against a person or group of persons from being contained in the F. O. I. A. 2011. This work is also restricted suggestions to the government concerning bringing into legislation Act which could serve good purpose for the prohibition of the abuse of the F. O. I .A, mandating the use of F. O. I. A. by the media and other persons or group of persons whom through their use of the act would result to the promotion of peace, unity, security and democracy in the country and any populated clause which could restrict or prevent the general public from accessing or having in their possession information which they want keeping to the provision of the right of the public to access and have information from any public institution of their chance according to the F. O. I. A. 2011.
The comparative analysis of the jurisdiction of Nigerian’s and that of Gambia and American jurisdictions as common wealth countries which is to Nigeria.
DEFINITION OF TERMS
For a better understanding of this topic;
FREEDOM OF INFORMATION ACT 2011– A LEGAL APPRAISAL OF ITS IMPLEMENTATION SO FAR.
The definition of these terms will be necessary as these terms need to be understood individually for a collective appreciation of the work.
FREEDOM
The Blacks Law Dictionary Fourth Edition- defines freedom as the state of being free, liberty, self-determination absence of restraints hindrance or prohibition than such as may be imposed by just and necessary laws and the duties of social life 10. That is to say freedom is absence of restraints under conditions essential to the equal enjoyment of the same freedom by others. The state of nature is that of freedomthus Emmanuel Kant declared that freedom was “one sole and original right that belongs to every human being by virtue of his humanity”. “The end of the Law is not to abolish restraint but to preserve and enlarge freedom” asserted John Locke. Also the constitution embodies a charter of freedoms in Chapter IV. These fundamental rights of freedom namely right to life. Section 33, right to Liberty, Section 35, Fair hearing, Section 36(1) Freedom of Expression and press, Section 39(1) etc are not without their[4] restrictions and derogations on the interest of defence, Public safety, Public Order, Public Morality or for the purpose of protecting the rights and freedom of other persons.
Information: The Advanced Learners Dictionary defined information as facts told, heard or discovered about somebody or something. The New Lexicon Websters Dictionary defines it as the communication of news, knowledge etc. a fact told or communicated, while the Mitras Legal and Commercial Dictionary defines the word information as being synonyms fifth edition USA with knowledge or awareness.
From the above definitions, it is comprehensive that information is knowledge and knowledge is enlightenment it follows that to inform simply means to give knowledge to or enlighten somebody. There cannot be enlightenment without information, information is light, it is the most fundamental function of mass communication said the well known British Playwright, Tom Stoppard.
Act
The word ‘Act’ in relation to hierarchies of law or ranking of laws means a statute or written law, an enact or any law made by the National Assembly. The National Assembly being a body constitutionally vested with the law making power of the Federal Republic of Nigeria and consists of the Senate and House of Representatives 11. Laws enacted by these two houses are known as Act. An act are law made by parliament during civilian regiment, all the existing federation statutes in Nigeria up till (2004) have been consolidated into the law of the federation 2004.
Legal Appraisal: According to Blacks Law Dictionary, ‘Legal means of or relating to Law; falling within the province of law, established, required or permitted by law, of or relating to law as opposed to equity: 12[5]
Appraisal means the determination of what constitutes a fair price, valuation; estimation of worth. The report of such a determination 13.
‘Legal Appraisal’ thus jointly means the legal valuation of the quality of something or attaching or attributing, by estimation worth or quality or value of something within the province of law; of or pertaining to the estimation of the value of something in law 14.
Implementation: According to the New International Websters Comprehensive Dictionary of the English Language, Implementation means a putting into effect, fulfillment or carrying through, as of[6][7]ideas, a program etc 15. Implementation used in this worth is generally to relies the way in which the freedom of information Act 2011 is being executed as it ought to be since its enactment in 2011.
Public Institution: According to Blacks Law Dictionary, ’Public Institution is an established organization especially one of a public character such as faculty for the treatment of mentally disabled persons 16 Public Institution also means an established institution or organization for rendering services to the public at large.
Deviation: According Blacks Law Dictionary the word deviation means generally, a charge from a customary are agreed on cause of action
Politicians: According to International Websters Comprehensive Dictionary, the word ‘Politicians’ is one engaged in politics especially professionally17 One skilled in the science of government or politics a statesman. One who engages in politics for a personal or partisan aims rather than for reasons of pinaple, also a political scheme or opportunist.
Mass Media: New International Websters Comprehensive Dictionary defined the word Mass Media as Newspapers, Magazines, Paper-Board Books, Radio, Television and Motion Pictures, considered as means of reaching a very wode public audience 18.[8]
[1] Section 39 of the 1999 constitution
2 chapter IV of the 1999 constitution
3 section 39 of the 1999 constitution
4 RansomeKuti v A G Federation
5Exceptions to fundamental rights, section 45 of the 1999 constitution
7 Decree 1987 number 19
10 Fourth Edition of Blacks Law Dictionary USA
12 Blacks Law Dictionary Ninth Edition USA
13 Blacks Law Dictionary Ninth Edition USA
14 Blacks Law Dictionary Ninth Edfition USA
15 New International Websters Comprehensive Dictionary of the English Language
16 Blacks Law Dictionary Ninth Edition, USA
[8]17 New International Websters Comprehensive Dictionary Encyclopedia Edition.
18 New InternatiomnalWebsters Comprehensive Dictionary Encyclopedia Edition.
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