Sunday, August 11, 2013 4:41 PM / Temitope Olodo
"It will be an injudicious exercise of my discretion, pursuant to the provisions of Order 34 of the Federal High Court (Civil Procedure) Rule, 2009 to proceed by granting leave to the Applicant to apply for an order of mandamus against a Respondent who has not been sued or shown to be a public institution or authority, and even as an ‘officer of the Federal Government in charge of information’, that has not been shown to have awarded any contract and to be amenable to the issuance of prerogative writs of mandamus to compel the performance of a public duty after a refusal to do so has been established.” - Justice Gabriel Kolawole, Federal High Court, Abuja.
The above statement attributed to Justice Gabriel Kolawole clearly reveals that Nigeria Judicial needs a serious orientation on the Freedom of Information Act and for the Justice Kolawole to request for curtailing of the Act further demonstrate my concern that he has little or no knowledge of the Act.
For over 10 years, civil society organisations and campaigners battled for the enacting of the Freedom of Information Act which in a nutshell gives Nigerians to request for any public record not covered by exemptions. The purpose of the law is to ensure accessibility and help with transparency.
However, I believe it is crucial to examine the judgement of Justice Kolawole in order to understand the err of law and dangerous precedent that he is setting on the subject matter.
The Stop Impunity Nigeria (S.I.N.) filed a Motion Ex-Parte on behalf of Paradigm Initiative Nigeria (PIN) on June 5, 2013, an order of mandamus to compel the Special Adviser to the President on Media and Publicity, Dr. Reuben Abati, to disclose to the organization detailed information on the multi-million dollar contract awarded sometime in April 2013 to an Israeli company, Elbit Systems, to monitor internet communication in Nigeria.
The decision of Stop Impunity Nigeria (S.I.N) submitted on behalf of Paradigm Initiative Nigeria (P.I.N) complies with the legislative provision of the Freedom of Information Act 2011 section 20:
"Any applicant who has been denied access to information, or a apart thereof, may apply to the Court for a review of the matter within 30 days after the public institution denies or is deemed to have denied the application, or within such further time as the Court may either before or after the expiration of the 30 days fix or allow..."
The role of the court at this point is to determine the legitimacy and validity of the Claimant submission against the Respondent and whether it is admissible. The Claimant according to available court information wanted:
1. A declaration that the denial of access and refusal to make available to PIN detailed information on the contract awarded to Elbit Systems, a company based in Haifa, Israel, for the supply of the Wise Intelligence Technology System for Intelligence Analysis and Cyber Defence for Nigeria by Dr Abati without an explanation constitutes an infringement of PIN’s rights guaranteed and protected by section 1 (1) of the Freedom Information Act, 2011.
2. A declaration that the continued refusal of Dr Abati to make the information available to PIN despite the organization’s demand violates section 4 of the Freedom Information Act.
3. An order of mandamus compelling Dr. Abati to make the information available to PIN.
Any reasonable judge with little knowledge of the Act would have clearly dismissed the case not on grounds of locus standi which the court decided to employ but rather on grounds of exemption which is the reason I believe Nigeria judges must be given training on Freedom of Information Act 2011 and I will diagnose the court based on the little information available.
On the prima facie, the court information revealed that PIN was interested in a contract awarded to Elbit Systems, a company based in Haifa, Israel, for the supply of the Wise Intelligence Technology System for Intelligence Analysis and Cyber Defence for Nigeria from the Special Adviser to the President on Media and Publicity, Dr. Reuben Abati.
The first question the court should ask is this;
Did the request fall under exemption rule?
It is very clear the contract awarded to Elbit System based on the information provided is for intelligence technology and cyber defence which is national security and thus covered under Section 11(1) of the Freedom of Information Act 2011:
"A public institution may deny an application for any information the disclosure of which may be injurious to the conduct of international Affair and the defence of the Federal Republic of Nigeria"
The law however made it clear that in order for the public institution to invoke this section, a public interest test must be undertaken. It is the duty of the Attorney General of the federation to draw up the guidance explaining to public authorities what the public interest test is, when it is required and how to apply it, taking into account relevant factors and weighting them appropriately, in order to decide whether to disclose information or not.
It is the duty of a public institution to weigh the public interest in maintaining the exemption against the public interest in disclosure. This is the public interest test.
A public institution can only withhold an information (i.e. defence information) if the public interest in maintaining the exemption outweighs the public interest in disclosure. The public interest here means the public good, not what is of interest to the public, and not the private interests of the requester. In carrying out the public interest test the public institution should consider the circumstances at the time of the request or within the normal time for compliance.
Any sensible Nigerian would agree on the prima facie that intelligence information analysis is needed now because of the Boko Haram saga in the country and procurement of the equipment is for national security but PIN has a locus standi to ask questions to ensure the privacy of ordinary Nigerians in terms of interception of legitimate Cyber exchange of Nigeria in the name of fighting a war against terrorism which is where the public interest test comes into play.
Apart from exemption under National Security, it is possible to exempt disclosure under trade secret and ongoing operational enforcement action. So, it is quite clear that the judges err in the application of the provision of the law in this case.
The judge also highlighted concerns about applying:
"an order of mandamus against a Respondent who has not been sued or shown to be a public institution or authority, and even as an ‘officer of the Federal Government in charge of information’, that has not been shown to have awarded any contract..."
The court again misinterpreted the provisions of the Freedom of Information Act 2011 on the subject matter of who should be dealing with the request of PIN.
Section 5. (1) of the FOIA 2011 states:
"Where a public institution receives an application for access to information,
that another public institution has greater interest in the information, the institution to which the application is made may within 3 days but not later than 7 days after the application is received, transfer the application, and if necessary, the information, to the other public institution, in which case, the institution transferring the application shall give written notice of the transfer to the applicant, which notice shall contain a statement informing the applicant that such decision to transfer the application can be reviewed by the Court..."
Thus the question that the judge should be asking is simply, which public institution has a greater interest in this case? Did the requester follow the FOI request to the right place? If the answer is No; Did the Respondent alerted the requester to that fact and forward the information to the relevant Federal Government Ministry in line with the provision of Section 5(1) of FOIA 2011?
In the first instance, if I was advising PIN on this case, I would have advised them to file the case against Ministry of Defence, NSA or The Attorney General's Office not The Presidency and definitely not Reuben Abati, it is definitely a waste of court time and it reveals that they do not understand the FOIA 2011.
Justice Kolawole claimed that there is no “country in the world where access to all forms of public records are thrown open even to an Applicant who is not required to show any specific interest in the information requested from a public body.”
Please can also tell his learned judge to use the Internet to google "Freedom of Information" and he will realise that in every jurisdiction; the Act allows open access to all information apart from these highlighted as exemption and exception in some legal jurisdiction which Nigeria FOIA covered thus it is clear his lordship did not read the Act.
Below are sections of the Act in other counties where FOIA operates and locus standi is not needed: Serbia – Article 15(4); India – Section 6(2); Liberia – Section 3.2; Mexico – Article 40; South Africa – Section 11(3); Finland – Article 13(1); Uganda – Article 6; United Kingdom – Section 8; Sweden – Article 14(3); Brazil – Article 10(3); Australia – Article 11(2); Canada – Section 6; among dozens of others.
Finally, the judge highlighted an area of serious concern on locus standi:
"...an Applicant for any of the prerogative orders for judicial review to demonstrate that he has ‘sufficient interest in the subject matter to which the application for leave relates"
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. Standing exists from one of three causes:
1. The party is directly subject to an adverse effect by the statute or action in question, and the harm suffered will continue unless the court grants relief in the form of damages or a finding that the law either does not apply to the party or that the law is void or can be nullified.
This is called the "something to lose" doctrine, in which the party has standing because they directly will be harmed by the conditions for which they are asking the court for relief.
2. The party is not directly harmed by the conditions by which they are petitioning the court for relief but asks for it because the harm involved has some reasonable relation to their situation, and the continued existence of the harm may affect others who might not be able to ask a court for relief.
3. The party is granted automatic standing by act of law. Under some environmental laws in the United States for example, a party may sue someone causing pollution to certain waterways without a federal permit, even if the party suing is not harmed by the pollution being generated.
Even in developed countries, the issue of locus standi has been established in law and we need to ensure that the Freedom of Information Act 2011 is not amended because a judge can't sit down to study the case him or her properly.
In British administrative law, the applicant needs to have a sufficient interest in the matter to which the application relates. This sufficient interest requirement has been construed liberally by the courts. As Lord Diplock explained in a decided case:
"[i]t would...be a grave lacuna in our system of public law if a pressure group...or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped."
I believe the above quotation clearly support my argument that amending the Act because some people don't understand how to operate within the ambit of the law is clearly unacceptable and backward thinking.
To avoid future difficulty on the interpretation of the Act and prevent the wasting of court's time, I will recommend:
1. Establishment of the "office of Nigeria Information Commissioner" which will be an independent adjudicator mediating between the public institution and aggrieved parties on cases relating public record and compliance with the Freedom of Information Act 2011
2. Judges are enlightening about the Freedom of Information Act 2011
3. The Legislators should take their oversight function seriously and ensure public institution compliance with the Act.
The judge insisted that “the responsibility to use the Act by Nigerians responsibly as an instrument to ensure transparency in governance should not be left so loose and at large without any form of checks and perhaps, balances.”
However, contrary to the assertion of Justice Gabriel Kolawole of Federal High Court Abuja, there are proper checks and balances embedded in the Act but the implementation and compliance is very weak.
The Special Adviser to the President on Media and Publicity, Dr. Reuben Abati, should never had been included in the litigation because he is clearly not the designated person responsible for handling FOI request for The Presidency.
Justice Gabriel Kolawole also expressed the view in his ruling that the FOI Act creates “a situation where scarce public resources, time and energy are permitted to be squandered in attending to a request for information which the person applying for it need not show that he needs” . However, the Act is clear that charges could be levied by the public institution under section 8:
"Fees shall be limited to standard charges for document duplication and Fees transcription where necessary..."
The judge made an error of judgement in this case and he needs to educate himself on the FOI Act 2011
About The Author: Temitope Olodo is a Preventive Counter Terrorism Expert based in the United Kingdom and author of many books including "Counter Terrorism Guidance For Nigeria Religious Leaders" and "Freedom of Information: A Practical Guide For Nigerians". He worked in many sensitive roles for Her Majesty Government including The Office for Security and Counter Terrorism (OSCT) managing project target vulnerable individual inspired by Al Qaeda doctrines. Website
Freedom of Information: A Practical Guide For Nigerians (ISBN - 9781447802150)
Take a look at this video on YouTube
Nigeria Freedom of Information Act