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Introduction: The right to information is a component of the broader right to freedom of expression and of press enshrined in Article 19 of the Universal Declaration of Human Rights 1984(UDHR). Article 19 of the International Covenant on Civil and Political Rights 1966 (ICCPR) Article 9 of African Charter on Human and People’s

Rights, 1981(ACHPR) and other international human rights instruments.

Nigeria, is one of the few countries in Africa that has a constitutional provision guaranteeing access to information and a specific law which further reinforces the provision with procedures and penalties for non-compliance in the freedom of Information (FoIA) which was passed in May, 2011.

Section 34(1) of the C.F.R.N 1999, which states that “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference”.

Section 39 of the C.F.R.N 1999, on the right to access to information. Notwithstanding, Section 39(1) of the CFRN 1999 sufficient legal basis exists, which guarantees access to information which are vital to the  smooth function of democracy. A positive state obligation to protect access to information pursuant to Article 9 of the African Charter which has been domesticated as Nigerian Law. This gives effect to the original intent of the Constitution as a living document.

Sensitivity of National Security vis a vis right to freedom of Information.

The Official Secrets Act 1962 and the National Security Agencies Act 1986- Two main statues which permit limitations on access to information. According to Section 39(3) and Section 45(1) of the CFRN 1999 ” the limitations must be “reasonably” justifiable in a democratic society. The challenge arises when information is sought to be restricted either on general grounds of public interest under the FoIA 2011 or on the more specific basis of National Security under the National Security Agencies Act, or for some other reasons permitted by other statutes.

Moreover, “National Security” has no precise meaning in Nigerian Law. And it has not helped that the constitution broadly confers power on these Agencies to limit access to information in the interest of Defense, without clearly specifying the test boy reasonable justification that the limitation must fulfill.  However “Classified Matter” provided by section 9 of the Official Secrets Act, which defines it as” any information or thing which under any system of security classification, from time to time in use by or by any branch of government is not to be disclosed to the public and of which the disclosure to the public would be prejudicial to the secret of Nigeria”.

The problem with the statutes is that the are extremely vaguely worded and conform extraordinary broad powers agencies that are saddled with the responsibility of classifying information. As a result, the power to classify information in the interest of National Security has been broadly abused in Nigeria; it has fostered secrecy around Government activities, and has been used as a ploy for Official Corruption, to limit press freedom and other civil liberties. See a few instances of judicial exposition on the legality of limitations on access to information in Nigeria can be found in sedition cases. The most prominent of these are; DPP V CHIKEOBI (1961) All NLR 186, and ARTHUR NWANKWO V THE STATE (1983) FRN 320, there has been no authoritative pronouncements on the subject by the Nigeria’s Apex Court. The interpretative approach to Constitutional provisions thus remains underdeveloped and uncertain. Nonetheless, sedition laws continue to be asserted by the Nigerian Government against press freedoms especially.

In conclusion, reasons for the prominence given to the right to access to Government-held information is essential for the health of democracy. The quality of democratic Governance is improved and strengthened by public participation in decision making processes. But in itself, public participation cannot be effective access to information. Moreover, a legally enforceable right to Government held information will enhance efficiency and accountability, and boost public confidence in Government, in other words Government-held information actually belongs to the people, unfortunately, the people’s ability to access such information is often impeded by the traditional reluctance of Government Agencies to release information in their possession.

Comrade Emmanuel Onwubiko; National Coordinator; Human Rights Writers Association of Nigeria (HURIWA).

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