BY BEN AGANDE

After several years of dilly-dallying, the Senate finally passed the Freedom of Information (FoI) Bill which its proponents say would engender transparency and openness in government and the conduct of business affairs.

To the proponents of the Bill, which was passed by the last Senate but was not assented to by former President Olusegun Obasanjo, the latest passage of the Bill represents a bold step by the upper house coming on the heels of fears that it may not be passed before the lawmakers  go on recess for the April elections.

But to close observers of the Senate, though the passage of the Bill was unusually delayed, there was always a glimmer of hope that it would be eventually passed. Nothing underscored this hope than the assurance given by the president of the Senate, Senator David Mark, who said, contrary to the perception in some quarters that the upper house was averse to the passage of the Bill, it, indeed, was at the forefront, of the Bill’s passage because the parliament as an institution stood to benefit immensely from it.

During a meeting with members of the Newspapers Proprietors Association of Nigeria, NPAN, in his office, penultimate week, Mark assured that the Senate would pass the Bill with a caveat that the media should demonstrate responsibility in the discharge of its duties.

According to him, the “passage of the Bill into law is not a problem but we must show enough restraint and responsibility in order to avoid recklessness in the discharge of our duties”.

So when the chairman of the Committee on Information, Senator Ayogu Eze, submitted the report of its committee on the Bill, most Nigerians, who had been following the controversy surrounding the passage of the Bill, heaved a sigh of relief.

In his remarks before the Senate began clause by clause consideration of the FoI Bill, Eze said the Bill, seeks to “provide for a right of access to public information or record kept by governments or public institutions and/or private bodies carrying out public functions for citizens of the country. This is intended to increase the availability of public records and information to citizens of the country in order to participate more effectively in the making and administration of laws and policies and to promote accountability of public affairs”.

The lofty goals espoused by the chairman of the committee about the Bill were however direct opposite of the contents. From the name of the Bill which its proponents had aptly captured Freedom of Information Bill, what the Senate committee presented to the session was a completely new Bill. What the Senate eventually passed was “Right of Access to Records” and not the Freedom of Information Bill that was widely touted.

The apparent downgrading of the contents of the Bill was not lost on the senators, some of whom are already wary of the apparent willingness of some of their colleagues to pass the Bill. Senator Smart Adeyemi, former president of the Nigerian Union of Journalists, fired the first salvo when he roundly condemned the Bill as not being in tandem with the original presented by its proponents.

According to him, ‘the Bill is adulterated and is not in consonance with the spirit and concept of the original Bill’.

But the consideration of the first clause of the Bill sparked off heated debates from some senators who opined that it was not a representation of the original Bill.

Mark, who presided over the session, queried while the second clause of the Bill was coined in such a way as to make it impossible for any body to obtain information in the first place.

The committee, in its recommendation on the second clause of the Bill which is Right to Access to Records, recommended: “Every citizen of the Federal Republic of Nigeria, has a legally enforceable right to, and shall, on application be given access to any information or record  under the control of a government or public institution or private companies performing public functions, provided the disclosure of such information or release of such record(s) shall not compromise national security and that the applicant  shall have satisfied a state or federal High Court of the need for the disclosure of such information or release of such record(s)”.
The Senate president wondered why an applicant for information from a government agency would have to approach a court first before being allowed access to the record.

His view was shared by other senators who argued that the whole essence of the Freedom of Information Bill would be defeated if the provision was allowed to pass as recommended by the committee.

Senator Ahmed Lawan, in his contribution, noted: “If one has to go to court to justify his request for information, then there is no freedom again.”  He queried what would constitute national security and who or which authority would determine what constitutes national security.

In her contribution, Senator Nkechi Nwogu warned that the Bill as submitted to the Senate by the committee contains provisions that “is a road to booby trapping the Bill” and warned that it should not be passed as submitted.

After much argument, the Senate amended the contentious clause 2 to read: “Every citizen of the Federal Republic of Nigeria has a legally enforceable right to, and shall, on application be given access to any information or record under the control of a government or public institution or private companies performing public functions, provided the disclosure of such information or release of such record(s) shall not compromise national security”.

The suspension of debate on the Bill on the first day it was presented provided a ground for a rather casual consideration of the other provisions contained in the Bill. This is because on the day it was passed, most of the senators were itching to proceed on recess to tackle their campaigns for re-elections.
Though the Bill does not capture the very essence of its proponents who sought to make the governance as open as possible, it is nonetheless a remarkable progress for a country whose government agencies are notorious for the secrecy with which they conduct government affairs.

For instance, section 3 of the bill provides for every head of government or public institutions to “publish periodically in any accessible form, including through the federal government Gazette, in print and online, a document containing” a description of its duties, how it is carried out, files containing applications for any contract, permits, grants or agreements. The Bill also mandates the head of such organizations to widely disseminate such publications to members of public.

The bill also provides that any request for access to information from a public or government organization shall be attended to by the head of such organization not later than thirty working days from the date of receipt of the application.

One other good aspect of the Bill is the divesting of powers from the head of government institution to refuse application for access to public records. By the provisions of section 8 of the Bill, if for any reason the head of such institution refuses to provide the information requested by the applicant, “the head of the institution shall state in the notice given to the applicant the grounds for the refusal, the specific provision of this Act that it relates to and that the applicant has a right to challenge the refusal in court”.
The Bill however empowers heads of institutions to decline access to information if such access would jeopardize national security, affect the conduct of international affairs or would amount to the release of trade secrets of the country.

Though the Bill is not a true representation of what its initial proponents want it to be as it is cautious on the side of the public servants, it is nonetheless a worthy step in the direction of making governance more open and transparent.

Whether President Goodluck Jonathan would be on the credit side of history by signing the Bill into law or act like Obasanjo, who refused to sign the previous passed Bill is another thing entirely.  But if Jonathan chooses to be on the debit side of history by declining assent to the Bill, the passage by the Senate is a major step in our quest to make governance more open and transparent.