Continued from yesterday & concluded
The Official Secrets Act,1962
The Official Secrets Act, (OSA), 1962,a colonial- era law currently codified as Cap 03, Laws of the Federation of Nigeria, 2004, is one of the greatest obstacles to the effective implementation of the FIOA because its provisions are in conflict with those of the Act.
While the primary purpose of FOIA is to release information to the public in public interest , that of OSA is to keep information away from the public under the guise of public safety.
While the FOIA provides for openness, the OSA relies on closeness.
It does so to secure public safety by restricting what it calls”Classified matters”
While the FOIA provides for obligation on the part of public officials to release information within SEVEN DAYS of application by citizens , the OSA provides for Oaths of Secrecy by public officials against disclosure of information.
FOIA gives immunity to whistleblowers from civil and criminal posecution while OSA allows for criminal prosecution leading to fines and imprisonment.
Even though the FOIA provides that the Act takes precedence over other earlier laws like the OSA because it is later in time in line with conflict of laws principle, the opposite is the case in practice as public servants prefer to restrict information because of their oaths of secrecy.
Criminal Code Act
Section 97 of the Criminal Code makes provision for the unauthorized disclosure of official secrets a criminal offence punishable by prison sentence. This is a major hindrance
to press freedom.Even if an internal government source wants to help an investigative reporter expose corruption, the thought of criminal prosecution and punishment provided in this section will discourage the source from doing so.
Cybercrimes (Prohibition, Prevention, etc.) Act .
Though, the Cybercrimes Act was originally intended essentially to fight internet fraud, the provisions within the Act have been widely weaponized under the guise of preventing “cyberstalking” or the spread of “false information.” to hinder press freedom.
Security agencies regularly bypass the FOIA framework entirely to arrest, harass and detain journalists and whistleblowers that publish expose using leaked data under the Cybercrimes Act for “causing annoyance or anxiety” to public officials,
Despite the fact that what constitutes cyberstalking in Section 24(1) of the original Act of 2015 has now been redefined in Section 5 of the amended 2024 Act, an individual can still commit an offence if he or she knowingly or intentionally sends or cause to be sent computer messages that are explicitly
pornographic, or messages he or she knows to be false specifically to cause a breakdown of law/order or to threaten life. If found liable, the penalties for the offence remain the same as in the principal Act .
It is argued that this amended provision is still wide open to interpretation and can be used to stifle press freedom.
Nigeria Data Protection Act(NDPA), 2023
The Nigeria Data Protection Act (NDPA),2023 holds supreme power over any other laws on data handling. It has stringent compliance rules on release of private data to the public.Even though both acts are geared towards transparency, there is conflict between private data protection obligations of the NDPA and open governance rules of FOIA.This is a significant hindrance to the release of certain information to the public.
While the FOIA legally mandates that public institutions respond to information requests within a seven-day period, there is no such short deadline to respond to requests under the NDPA. In most cases, risk-averse officers take their time to respond to requests in order to avoid the heavy penalties associated with data leaks, In order to do a thorough job, they meticulously scan, review, and redact sensitive personal information from electronic records before releasing them.
Unfortunately,most agencies in the country lack the technical tools or legal expertise to do this as quickly as requesters will want them to do, resulting in delayed or outright denial of FOIA requests.
Exemption Clauses Within The Act
The FOIA itself recognizes that unrestricted disclosure is neither practical nor desirable.
Under Section 11 of the FOIA, a public institution is legally permitted to deny a request if the disclosure of the information would cause identifiable injury to the defence of Nigeria or its international conduct.
Under Section 11(1), ,a public institution may refuse to disclose information if its release may reasonably be expected to be injurious to:
The Defence of the Federation: Information regarding active military strategies, deployment patterns, weapons capabilities, or intelligence operations
International Affairs: Highly sensitive communications or diplomatic agreements between the Nigerian government and foreign states, international bodies, or alliances.
Law Enforcement and Security Investigations: Under Section 12,records that could compromise ongoing criminal investigations, reveal the identities of confidential informants, endanger individuals or jeopardize such investigations.
The only limitation here,however, is that public interest in disclosure should be weighed against the harm of releasing such information.
The Constitution
As I have emphasised in previous articles, the constitutional provision in Section 22 is not justiciable by virtue of Section 6.6(c) of same constitution.
Although, Section 39(1) of the 1999 Constitution guarantees freedom of expression, Sections 39(3) and 45 permit restrictions on these rights in the interest of defence, public safety, or public order.
Since constitutional law overrides statutory law, government lawyers use these broad “public interest and safety” caveats to argue that state security overrides a journalist’s right to access such information, making the FOIA a subordinate law when national security matters are involved.
The Plight of the Nigerian press
Journalists in Nigeria are given responsibility without empowerement.They are to make government accountable to the people but they are not adequately protected to discharge this responsibility. They are randomly attacked, harassed and intimidated and even killed by overzealous securitymen in the course of performing their duties.
Most media houses do not provide good working conditions for their employees. Salaries and allowances are either paid late or not paid at all. In most cases, there are neither pension benefits nor insurance cover for the workers. Under these conditions, many journalists are prone to compromise on ethics and are also not ready to take the risk of acting as whistleblowers by ensuring they get information on public- interest matters from public institutions
Conclusion
The FOIA has undoubtedly transformed Nigeria’s transparency landscape by creating a legally enforceable right of access to public information and strengthening investigative journalism.
However, it has not done enough to effectively promote press freedom.
To realize the full promise of the FOIA, there is need to harmonize conflicting legislations, reform outdated secrecy laws, strengthen institutional compliance, improve public record management, curb the abuse of powers by overzealous securitymen as well as invest in the welfare and safety of journalists.
Ogbamosa, a legal practitioner/Communications Consultant, wrote via :mack_ogbamosa@yahoo.com
