Vanguard News Nigeria

Lawyers divided over superiority of FOI to Official Secret Act

By Henry Ojelu

On August 13, 2018,Samuel Ogundipe, Scurity Sector reporter with Premium Times, an online newspaper, was arrested by the pPolice in Abuja. Ogundipe’s arrest was sequel to a story he had written revealing a report by the Inspector-General of Police, Abubakar Idris to then acting President, Prof. Yemi Osinbajo.

The said report indicted the Director-General of the Department of State Services, DSS, Lawal Daura on the invasion of the National Assembly. 

 After several unsuccessful attempts to compel Ogundipe to disclose the source of his information, the police formally arraigned him before an Abuja Magistrate Court on charges relating to theft and criminal trespass. The police in a one count charge alleged that Ogundipe on or about August 2018, stole a police interim report stored in the confidential registry of State House, Federal Capital Territory, Abuja. The offence, according to the police, is contrary and punishable under section 352, 288 and 319A of the Penal Code Law.

Abubakar Malami (SAN) 

Although Ogundipe has since been released by the court on bail, his arrest and detention has raised questions about the seeming conflict between the Official Secret Act and Freedom of Information Act. 

Enacted on September 1962, the Official Secret Act provides for the protection of official information.

The act specifically provides for the protection of sensitive official information, among others.

The act provides that any person charged with an offence under the foregoing subsection shall, unless the contrary is proved, be deemed to have acted for a purpose prejudicial to the security of Nigeria.

On the other hand, Freedom of Information Act, passed into law in 2011 provides for free access of public information to the citizen. The act also provides for the protection of personal privacy, protection of serving public officers from adverse consequences of disclosing certain kinds of official information without authorisation and establishes procedures for the achievement of those purposes and; for related matters. 

Vanguard Law and Human Rights in this edition, sought the views of lawyers on which of the enactments is superior. Among those who spoke are Mr. Joseph Otteh, Executive Director, Access to Justice; Mr. Monday Ubani, immediate past 2nd Vice-President, Nigerian Bar Association;  Mr. Destiny Takon, human rights activist; Senior lecturer, Law

Faculty, Lagos State University, Gbenga Ojo and Wahab Shittu, Law lecturer, University of Lagos.

Joseph Otteh said: “Basically, the Freedom of Information, FOI, Act by its intent is a proposition that the era of keeping governance a secret affair has come to an end. The FOI Act tries to bring in a lot more transparency about the operations of government. It is an expression of the notion that government is accountable to the people. But the FOI Act does have its own reach and I think that is understandable.

“One of the exceptions that information cannot be released to you is when the information requested for will be prejudicial to national security. So, even the FOI does make exceptions. But that is not to say that it is legitimate to harass anybody because the person is in possession of national secrets.

”The question is; what really is national secret? Take the example of the Premium Times journalist who was arrested and asked to reveal the source of his information. That is clearly unconstitutional.

If information comes to a journalist, first, has it been ascertained the information has anything to do with national security? Take for example an ordinary correspondence between government officials.

When a journalist has access to that, does that constitute a violation of national security? So if the President writes to the Minister of Justice and says, ‘give me a speech’, and that happens to get into the hands of a journalist; that certainly doesn’t have anything to do with national security.

“So on that basis alone, it is wrong. The fact that the police have articulated this as national security doesn’t mean it is really a national security matter. Secondly, if leaking document is an offence, it is not the journalist who has leaked the document.

He certainly doesn’t work in those establishments from where that information leaked. Somebody else leaked those documents. Police should go and find that person. So the fact that a journalist gets information and relays it to the public doesn’t make him criminally liable.”

 Monday Ubani said: “The official Secret Act by implication is dead with the enactment of the Freedom of Information Act. By implication, any law that runs contrary to a latter law is null and void. It is not enough for the police to just charge anybody for offences of stealing official government document. They must prove the allegation and it will be really interesting to see how they will sustain that allegation.

“Journalists have major role to play in holding government accountable. That role is enshrined in the constitution.

There are several superior court rulings on that issue. The young man arrested was simply doing his job.

“That case is dead on arrival. What they have succeeded in doing is incarcerating the young man for the period they did and embarrassing him. As for proving the case in court against him, I doubt if the police will succeed.”

 Wahab Shittu differed, saying: “Despite the Official Secrets Act and FOI, the Nigerian press is still far from being free for the following reasons. First, even if sections 22 and 39 of the 1999 Constitution uphold freedom of the press, section 39(3)of the same constitution expressly prohibits and prevents the disclosure of certain information in deference to any law reasonably justifiable in a democratic society.

“The section also imposes restrictions upon persons holding office under the government of the federation or of a state etc concerning disclosure of certain privileged information.

“The journalist on the strength of this constitutional provision cannot also hide under section 1 of the FOI which guarantees right to freedom to seek for and have access to information, to demand release of such sensitive materials in the public interest. The rationale for this is simple. The Official Secrets Act and FOI Act must be interpreted subject to the provisions of the constitution particularly section 39 (3) thereof.

Besides, no fundamental rights, including freedom of the press and mass media, is absolute. It is subject to such restrictions as the interest of defence, public safety or public order.

“In summary, the FOI Act is not the Messiah for the Press or the Nigerian journalist in view of the restrictions imposed by the constitution as analysed above.

ln essence, there is no conflict between the Official Secrets Act and the FOI Act when both legislations are read together with constitutional provisions. Both Acts are subject to the supremacy of the constitution and are generally subject to the restrictions imposed by section39(3) of the constitution and the limitations imposed on fundamental rights generally in terms of public health, public order, public safety etc.

Destiny Takon on his part, said: In my opinion, the Freedom of Information Act clearly overrides the Official Secret Act. The FOI Act is a later legislation. Even if there is no specific mention of the fact  that Official Secret Act has been repealed, there is an

assumption at law to that effect. Any matter of public interest is an issue for the public domain and it does not matter how that information was received. Public interest in itself is a defence for any action with respect to that.”

Gbenga Ojo said: “ A law enforcement agency can prosecute a suspect alleged to be in possession of secret government document using any other law but certainly not under the Official Secret Act.

They could use the Penal Code but definitely not the Official Secret Act. That law is dead by implication of the Freedom of Information Act. As regards the journalist that was arrested for being in possession of secret documents, we all know that the police are just taking a face-saving measure by arraigning him in court.

“This issue is not about charging him, but about securing conviction. As a journalist, it does not matter how you get your document. That is what investigative journalism is all about.          The freedom of journalists to gather information is covered by the constitution and no law or act can restrain them from doing their legitimate job.”

 

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