February 14, 2014

Where FoIA Does Not Apply

Where FoIA Does Not Apply

THE Lagos State Government, known for its accountability, openness and progressive credentials is in court contesting the right of the public to know how it spent a $90m World Bank facility for improvement of its schools.

State Attorney-General, Mr. Ade Ipaye, told a Federal High Court that the Freedom of Information Act, a 2011 law, under which the Socio-Economic Rights and Accountability Project, SERAP, wanted the State to disclose the information, was a federal law and therefore not binding on the State.

Mr. Ipaye first stated the position in November 2011 during a public lecture at the Lagos Television.

The state government told the court that the power to make laws on public records was concurrently shared between the National Assembly and the State House of Assembly in their jurisdictions.

The counter-affidavit reads, “The public records of Lagos State Government are generated and kept by various ministries, departments, agencies and personnel of the state government in execution of their functions and responsibility in the service of the State.

“Such state government agencies and personnel are statutorily created or regulated by laws of the state House of Assembly and the handling of public records has serious security implications which are routinely handled by rules established by the State Government.”

The position contradicts the constitutional provision that the National Assembly should make laws for the entire federation. State Assemblies make laws for their States.  According to Section 4 (5) of the Constitution, “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”.

States do not have laws on freedom of information.  If they had and there were conflicts between them and federal laws, the Constitution still resolves them in favour of federal laws. States are un-making or ignoring federal laws when they are not in their favour.

Domestication of laws, according to Section 12 (1) of the Constitution, applies to treaties between Nigeria and other countries. States are appropriating domestication to desecrate the Constitution.

The FoIA expands the liberties the Constitution awards the public. Section 22 of the Constitution which states, “The press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this Chapter and uphold the responsibility and accountability of the government to the people,” is stronger than the FoIA. On that score alone, governments and their agencies should account to the people through the media.

It would be interesting to see how the court resolves the FoIA imbroglio.