EDITORIAL: FOI Act verdict: Now, no escape for dodgy states, MDAs

The windows of transparency and accountability in governance were further widened by a recent Supreme Court judgment, which subjected the three tiers of government to the implementation of the Freedom of Information Act. All the states but one had, before now, refused to enforce it, with the unfounded argument that it was strictly a federal law. As a result, a deluge of requests by many public sector watchdogs for scrutiny of their activities came to naught.

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Only Ekiti State, under Kayode Fayemi as governor, domesticated the Act in 2011. However, the law does not require such a ritual for its implementation, as evident in the apex court declaration. In its well-considered judgment, the court said the matter was within the purview of the Constitution; therefore, its compliance was not negotiable by any public institution.

This should put to an end the evasiveness and dishonesty of the 36 states. Federal government agencies had not done better, either. The final legal test began in January 2014, initiated by a coalition of civil society groups, sequel to an FOI request denial by Edo State Agency for the Control of AIDS (EDOSACA).

The request had sought some clarifications on the agency’s financial expenditures, grants, donor partnership contracts and criteria for grants disbursement between 2011 and 2014, on the state’s HIV/AIDS Programme Development Project. In the first judicial pronouncement, the civil society team won at a Federal High Court, but this was reversed by the Court of Appeal, Benin Division, in 2018, which paved the way for this immutable verdict of the apex court.

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This resolution is laudable and we salute the civil society coalition for its courage and doggedness in taking up the gauntlet that precipitated this necessary outcome. However, concerns persist with the notoriety of governments and their agencies for disregarding the rule of law. It is not unlikely that many ministries, departments, and agencies would still refuse to abide by the ruling. We have still not imbibed openness in the conduct of the business of government, which democracy dictates.

In clear terms, the MDAs with skeletons in their cupboards would remain impervious to any FOI request; and, therefore, be inclined to the perverse and prevailing refrain of Nigerian politicians – we will not give you, and you can go back to court. Unfortunately, not many watchdogs, especially media organisations, have the resources and time to go through a protracted and irritating legal trajectory, to extract a piece of information out of a public institution. A good example is how BudgIT, a non-profit devoted to good governance and accountability, with its tracking of government expenditures, received just 10 responses from 500 requests it made to MDAs!

The MDAs or governments’ perception of the FOI Act need to change. There should be designated desks in offices for prompt responses to any request made, as it is done in other jurisdictions, while the personnel involved need to be trained and retrained. The era of public officials spouting the rule of law and at the same time brazenly erecting barriers to FOI requests needs to come to an end. We must move away from the tradition of maintaining an official brick wall against openness and accountability in the public space, so that democracy can thrive.

An avalanche of FOI requests had been denied, which the applicants and civil society organisations need to exhume now. One of them is the request of a Senior Advocate of Nigeria (SAN), for information on the finances of the national oil company, NNPC, pertaining to its expenditures on fuel importation and the maintenance of the country’s four refineries.

This was made in 2018. NNPC then claimed that it was not a public institution, and as such could not be subjected to an FOI enquiry. The response of the oil company was as erroneous as it is embarrassing, Mr9 Falana noted then. Its legal counsel, he argued, did not avert her mind to Section 2 (7) of the Freedom of Information Act, which defined public institutions to include the NNPC.

The opaque and niffy books of accounts of the NNPC, before its so-called mutation to a limited liability company, should be exposed to inquisitions of all sorts, using the FOI. The humongous corruption scandals that had rocked the company’s operations for decades, if abandoned and the country moved on, will be a huge caricature of the essence of the FOI Act.

We advocate a review of the law for stiffer penalties for non-compliance. Only then would the MDAs think twice about their attitude of ignoring requests.

It is not only Mr Falana, the Committee for the Defence of Human Rights (CDHR) had its request to the Osun State government on the Food Support Scheme Programme ignored. The Socio-Economic Rights and Accountability Project’s (SERAP) FOI request in respect of the Lagos State Pension Act, to see if it was paying its former officers serving at federal levels, between 2020 and 2024, was equally ignored. Also, SERAP did not get any feedback from the 36 states on their loans from China, expenditures, and UBE funds disbursements.

The seeming repudiation of the FOI Act by states and the Supreme Court’s recent finality on the matter starkly reminds us of how the similar legal drama concerning the enforcement of the Economic and Financial Crimes Commission (EFCC) Act in the states ended. The governors shamefully lost. The judgment on the direct release of funds to 774 Local Government Areas completed triumphal legal decisions that have stabbed the heart of fiscal impunity – to a significant extent – in governance.

Media reports indicate that only 13 out of 1,300 MDAs allocated funds in their 2025 budgets to handle FOI activities. This represents about 1 per cent, which is symptomatic of their aloofness to openness and accountability to the people. This year’s budget is valued at N49.74 trillion. Nigerians need to know how it is being spent.

There is the unresolved issue of a banquet of alleged corruption in the Ministry of Humanitarian Affairs. A 2021 report of the Auditor-General of the Federation, released in 2024, indicated that N57 billion belonging to the ministry was not accounted for. A former minister there has twice been a guest of the EFCC, while another was suspended.

How did Nigeria spend $25 billion in about 25 years in the maintenance of refineries without them being functional within the period in question, and nobody is held to account till date? These are dark spots, among many, in the MDAs, which an effective implementation of the FOI should unravel.

The rough patch that the FOI Act has had notwithstanding, media organisations, in our view, have not been as determined as the CSOs in compelling the government to action. The new ecstasy inspired by the recent court judgment on the matter should not peter out sooner than later, as it did when the National Assembly passed the Bill and it was signed into law in 2011, under Goodluck Jonathan’s presidency.

Sadly, the law has not led to a major breakthrough in exposing the underbelly of bad governance – the inexplicable level of corruption for which Nigeria terminally bleeds, as it were.

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A creation of the Media Rights Agenda (MRA), Civil Liberties Organisation (CLO) and Nigeria Union of Journalists (NUJ) in 1993, the FOI was presented to the parliament in 1999 as a private members bill. It survived several fatal intrigues but was eventually passed, only for President Olusegun Obasanjo to refuse to assent to it, to the disgrace of his regime.

Under this new lease of life, the implementation of the FOI Act in the states needs to gain traction, if only circumspection could be brought to bear on the rash of annual awards of excellence to governors and other public institutions by the media, which ordinarily they should be beaming searchlights on, that hold them to account. Instead of lauding them for measly benefits.

Now is the time for ACTION, not enthusiasm or mere applause for the law, if the edifice that corruption has erected will ever be pulled down, towards the enthronement of sanity in public administration.