Access to Information and the Freedom of Information Act, 2011: Whether A State Government also has Power of Enactment? By Hameed Ajibola Jimoh Esq.


Free access to information is one of the expectations of citizens from a responsible, responsive, accountable and transparent government in a democratic civil society. The Freedom of Information Act, 2011-herein after referred to as the FOIA- was passed and or enacted into law by the National Assembly and assented to by the Federal Government of Nigeria, which is now called the FOIA, 2011. Then, there were arguments as to States to adopt the provision of the FOIA and that whether the FOIA binds the State Government? This paper aims at considering the legal provisions in respect of the powers of the government at the Federal and State Levels to legislate on Freedom of Information and the limits set by law to this powers.

First and foremost, it is my humble submission that the right of citizens to freedom of information is indeed a constitutional and fundamental right with constitutional limitation and internationally guaranteed under the International Human Rights Laws. For instance, section 39 of the Federal Republic of Nigeria Constitution, 1999-herein after referred to as the Constitution- in Chapter IV. This section provides thus: (1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impact ideas and information without interference. (3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society- (a) for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph; or (b) imposing restrictions upon persons holding office under the Government of the Federation or of the State, members of the armed forces of the Federation or members of the Nigeria Police Force or the Government security services or agencies established by law’. (Underlining is mine for emphasis). Also see: section 45(1) of the Constitution. It is only a great surprise that despite these constitutional provisions, it took the Nigerian legislators at the Federal Level to enact the FOIA to give life to the constitutional right to freely access information since the promulgation of the 1999 (military constitution, with due respect) till 2011, which was about 12 years! Also see Article 9(1) of the African Charter on Human and People’s Rights.

Furthermore, it is my humble submission from my legal research that on the issue as to whether the State Governments too have the power to enact the Freedom of Information Law, without necessarily adopting the one of the Federal Government, I hold in the affirmative- that is, each State Government has that power of enactment of the freedom of information Law of that particular State. I am nevertheless, with due respect, of the submission that the FOIA binds every State of the Federation as a Federal legislation and there is no requirement of the State Government to adopt what is on its own binding on it. In support of my submission on that the State Government has the power to enact freedom of information law of the State, I refer to the provisions of section 4 of the Constitution which provides thus ‘4.—(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives. (4) In addition and without prejudice to the powers conferred by subsection (2) of this Section, the National Assembly shall have power to make laws with respect to the following matters, that is to say—; and (b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution. (5) If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void. (6) The Legislative powers of a State of the Federation shall be vested in the House of Assembly of the State. (7) The House of Assembly of a State shall have power to make Laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say—; and (c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.’.’. (Underlining is mine for emphasis). So, from the above provisions of the Constitution, it is clear in my humble view, that the source of powers of the National Assembly are: i) the Exclusive Legislative List; ii) the Concurrent Legislative List; iii) and (iii) any other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution. While the source of powers of a House of Assembly of a State are: (a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution ; (b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to thes Constitution to the extent prescribed in the Second column opposite thereto ; and (c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.’. (Underlining is mine for emphasis). Nevertheless, the power of a House of Assembly of a State in respect of the power to enact a law which gives free access to information, is covered (doctrine of covering the field) by the legislation made by the National Assembly on the same subject matter, and I humbly submit that these covering of the field will also be effective even where the State Government made or utilize such powers before the use of same by the National Assembly. See: section 4(5) of the Constitution (supra). In other words, by this constitutional provision, the National Assembly, by effects, is able to repeal the laws made by the House of Assembly of a State, automatically. Therefore, each of the State Government of the Federation has been conferred the constitutional powers to make State Law(s) in respect of the subject matter of free access to information by citizens, though, such power does not extend to making laws on the subject of the FOIA which contradict (but not which further support or complement) the Act (or law) made by the National Assembly on that same subject matter. In other words, such power of the House of Assembly of a State can be utilized to make such laws on the subject matter which aims at strengthening the laws made by the National Assembly and not to contradict same. Also, it has been clear that the FOIA binds the State Government as an Act made pursuant to the provisions of section 4 (2)(b) of the Constitution and not by virtue of being on the Exclusive or Concurrent Legislative List, which provides thus ‘(4) In addition and without prejudice to the powers conferred by subsection (2) of this Section, the National Assembly shall have power to make laws with respect to the following matters, that is to say—; and (b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.’. Though, in my humble view, linguistically or literally, the powers of both the National Assembly and the House of Assembly of State to make Laws in respect of Freedom of Information is concurrent but outside the listed concurrent powers set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the Second column opposite thereto, perhaps the drafters of the Constitution drafted the provisions ‘…any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution’, which was included to the powers of both the National Assembly and the House of Assembly of a State to cover any likelihood of inadvertence on the part of the powers listed in the Schedules, this I view as an elegant drafting.

Finally, but without prejudice to the above submissions, I humbly submit that by virtue of the provisions of section 4(2)(b) and 4(7)(c) of the Constitution, both the National Assembly and the House of Assembly of each State of the Federation has the power to make law in respect of Freedom of Information. Also, by virtue of Section 4(5) of the Constitution, the powers of the National Assembly covers the powers of the House of Assembly of a State on the subject matter. Furthermore, the FOIA as legislated by the National Assembly as a Federal Statute, binds all the State of the Federation as a power utilized pursuant to section 4(2)(b) of the Constitution and there is no requirement of adoption on State but State can adopt same in its Freedom of Information Law.

 

Email: hameed_ajibola@yahoo.com

 

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