Bad government thrives in the dark—a truth, it would seem, President Goodluck Jonathan understood when, defying conventional wisdom, he signed into law the Freedom of Information, FoI, Act.

Many have hailed this as “a new era” in open government. It is, without question, a watershed in Nigeria’s history. For the first time people in Nigeria will have the right to access information held by public bodies and institutions, and by private institutions performing public functions.

President Jonathan did what the previous government could not or would not do. One only has to look at the way Jonathan’s mentor, former President Olusegun Obasanjo, initially handled the FoI Act. President Obasanjo repeatedly promised to sign the FoI bill into law but back-tracked, citing unsubstantiated infringements on “national security”.
Openness, once denied, is now a right

Nevertheless, the growing resistance or lukewarm attitude by many of the 36 states of the federation to apply the law now casts doubt on its enforcement and the hope of reversing years of official corruption, under-development and lack of respect for internationally-recognised human rights.

Already, it has been reported that one group, Socio-Economic Rights and Accountability Project, is testing the FoI Act in court to ensure its direct application to all the states of the federation. Amnesty International will back any such initiative if the case does go to court.

Some state governments and senior lawyers have argued that unless states themselves pass the FoI Act it will only apply to the Federal Government and not the states. They cited Schedules 4, 5 and 6 of the Concurrent List of the 1999 Constitution as the legal basis for this viewpoint.

This will hardly come as a surprise to many, especially given the well-documented concerns about the absence of transparency and accountability in many of the states during the Obasanjo administration.

It is true that Schedules 4, 5, and 6 grant powers to both the federal and state governments to make laws relating to archives and public records. But by the application of the legal doctrine of covering the field, the signing of the FoI Act into law ipso facto renders it unnecessary for any of the 36 states to take any further action on the matter.  The Act has now become binding throughout the federation.

The plain language of the law makes it clear: There is no room for any of the 36 states of the federation to circumvent it. As such, the states would be deemed to have been ousted from the field. This position is backed up by several judgments of the Supreme Court of Nigeria.

There are fundamental principles of human rights and democracy at stake, ones that no elected state governments should be seen to undermine or impede. Moreover, the FoI Act is so vital to the effective functioning of Nigeria that no serious government should contest its direct application within its state.

Here is why the state governments must have a re-think:

Openness is not a threat to better government but an incentive to it
The direct application of the FoI Act to the 36 states of the federation will not burden the states but rather strengthen the legal and institutional framework for democracy, human rights, transparency and accountability within the states’ borders.

The FoI Act promises access and transparency, a new contract between government and the people it governs.
The FoI Act guarantees the people of Nigeria’s right to request information on the activities of government from the various ministries, offices or other sources, whether or not such information is contained in any written form.

They don’t even have to claim any special interest to do this. If the requested information is not released within a specified time, they can ask the court to compel the authorities to release the information. And it is an offence to refuse to release information, punishable by three years imprisonment. Wilful or deliberate destruction, alteration, falsification or misrepresentation of information is similarly punished.

This can only have a positive and direct impact on the lives of Nigerians.
By forcing problems into the open earlier, access to information cuts the risks of serious human rights violations —particularly prolonged violations.

The right to access information is not merely important as an aspect of freedom of expression. It is also an important tool for bringing about the full realisation of all other human rights.

The FoI Act will provide a means by which people can know about their rights and entitlements, identify when their rights are being violated and hold governments to account for fulfilling their constitutional and international human rights obligations.

It can also serve as a powerful tool for enabling individuals, the media and civil society to advocate successfully for a range of human rights. From the right to life, to the rights to human security and dignity and to basic economic and social rights, freedom of information can empower civil society to demand that legal and policy commitments are translated into practical realities that benefit people’s lives.

State governments with nothing to hide have nothing to fear
Therefore, all responsible and responsive governments—federal, states and local government——must embrace the FoI Act not only as a matter of law but also principle.

Civil society, who feels justifiably proud and whose remarkable work brought about the FoI Act in the first place, will need to mobilise and be perpetually vigilant if light is to prevail over the dark side; and if the veil of secrecy in public life, which has dominated Nigeria for decades, is to be lifted.

Dr  Kolawole Olaniyan is  a Legal Adviser at the International Secretariat of Amnesty International, London