Freedom of Information (FOI) Act applicable to 36 states, Supreme Court rules

The Supreme Court on Friday ruled that Nigeria’s Freedom of Information (FOI) Act applies to all tiers of government, including state institutions.

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Contrary to the arguments many state governments have canvassed over the years to dodge compliance with the FOI Act, a federal legislation, the court held that the National Assembly is competent to enact laws on public records and archives.

The court held that the matter falls within constitutional purview.

The judgement is a milestone for the 14-year-old legislation, whose implementation has encountered challenges due to limited commitment to transparent and democratic governance in the country.

Hiding under legal cover that the federal law was not applicable to the states is one of numerous strategies public institutions and their officials have devised to escape compliance with the law.

Many federal institutions, which agree they are bound by the law, ignore FoI requests without consequences.

The case leading up to Friday’s judgement of the Supreme Court was filed on 6 January 2014 by a coalition of civil society organisations following the denial of an FOI request by the Edo State Agency for the Control of AIDS (EDOSACA).

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The applicants sought detailed records relating to the HIV/AIDS Programme Development Project (HPDP II), including financial expenditures, grants, donor partnerships, contract awards, and criteria for grant allocations between 2011 and 2014.

Displeased with the action of the state agency, the applicants approached the Federal High Court for a judicial review. The court ruled in favour of the applicants, but the state government appealed to the Court of Appeal, Benin Division.

The Court of Appeal reversed the decision and held that the law was not applicable to the states.

However, Friday’s judgement of the Supreme Court overturned the 2018 majority ruling of the Court of Appeal, which held that the FOI Act only applies to federal Ministries, Departments, and Agencies (MDAs).

Speaking after the judgment, the applicants’ lead lawyer, President Aigbokhan, hailed the ruling.

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“This is not just a legal victory—it is a victory for democracy,” Mr Aigbokhan said, “This decision is a major leap for the global campaign for probity, accountability, and transparency, with far-reaching impact on public citizens at the sub-national level. Our laws must work for all. Once again, the Supreme Court has demonstrated its crucial role as a veritable arbiter of democratic ideals.”

The FOI journey in Nigeria

The first draft of the FOI bill was produced by the Media Rights Agenda (MRA), the Civil Liberties Organisation (CLO), and the Nigeria Union of Journalists (NUJ) in 1993. With the consolidation of democracy in 1999, a private member’s bill for the enactment of a Freedom of Information Act was presented to the National Assembly.

The bill was passed by the National Assembly in 2007, but former President Olusegun Obasanjo refused to sign it into law. When submitted to his office, Mr Obsanjo simply returned “the FOI Act” back to the sender.

The bill was greeted by a lot of misconceptions, paving the way for a wider Freedom of Information Coalition. The group embarked on nationwide mobilisation, campaigns and sensitisation in support of the bill on the premise that an FOI law would strengthen democracy and enhance good governance.

The Nigerian media played a dominant role in the FOI campaigns. Many media outlets serialised the content of the bill to further enlist public support.

Despite the widespread support, the advocacy for the access to information law lasted twelve years before the bill was passed by the National Assembly.

On May 28, 2011, President Jonathan signed the bill into law and it became an act of parliament. Nigeria thus became the second country in West Africa after Liberia (2010) to have an FOI law.

But for years many of Nigeria’s 36 states failed to implement the legislation, saying being a federal law, it did not apply to them. That obstacle has now being removed by today’s Supreme Court judgment.