37
THE NATION TUESDAY, AUGUST 21, 2012
LEGAL OPINION
Overview of Freedom of Information Act and tangential provisions of Official Secrets Act By Nojim Tairu
• Tairu
• Continued from last week
T
HE parts of The Official Secrets Act (TOSA) that have direct bearing to the Freedom of Information Act are the aspects thereof dealing with protection of official information (Section 1), Minister’s regulation for the keeping of records (Section 4) and offences/penalties under TOSA (Sections 7 and 8). The aforesaid relevant parts of The Official Secrets Act are all about the protection of official information, dubbed “Classified Matter,”-defined as any information or thing which, under any system of security classification in use by any branch of the government is not to be disclosed to the public and of which the disclosure would be prejudicial to the security of Nigeria. It is easy to observe at once from the aforesaid aim of the above aspect of The Official Secrets Act, in contrast to the objectives of the Freedom of Information Act, which have been set out in the first part of this paper, the colonial mentality and psyche of secrecy-which is the harbinger of the culture of silence and docility, is complete in The Official Secrets Act. The Act could well have been aptly titled: “An Act to make secret
the affairs and business of any branch of government and to ensure that the public knows nothing about their government except that which the government elects to disclose”! Protection of information under TOSA v. free access to information under the FoI Act Section 1(1) of The Official Secrets Acts stipulates that a person who transmits on behalf of the government any classified matter to an unauthorized person or obtains, reproduces or retains any classified matter which he is not authorized to obtain reproduce or retain is guilty of an offence. Ditto, failure of a public officer to comply with any instructions to safeguard any classified matter is also criminalise, vide subsection 2 of Section 1. The penalty for an offender convicted of offence under Section 7 is 14 years imprisonment. By virtue of section 8, an attempt to commit an offence under the Act or concealment of such offence is as good as committing the substantive offence itself, wherefor the punishment is the same as that for a principal offender. Under The Official Secrets Act, the Minister responsible for Security and Public Safety is, by virtue of Section 4(1) (a) and (b), empowered to make regulations controlling the manner in which any person conducts any organization for receiving letters, telegrams, packages or other matter for delivery to any other person and to make provision for furnishing of information and the keeping of records by persons having or ceasing to have the conduct of an organization. When the above provisions of The Official Secret Act are juxtaposed with those of the Freedom of Information Act, it is immediately obvious that whilst the former law seeks to hoard and keep away public information from public glare, the latter legislation is for their disclosure and revelation to the public. So then, the difference between the two laws is as clear as that between darkness and light. And really, secrecy is the mother of darkness, while information (knowledge) brings light. It is instructive to note that the Freedom of Information Act contains no express provision stating that its provisions have repealed the aforementioned provisions of The
Official Secrets Act. However, by necessary implication and upon application of the FOI Act, the obtrusive provisions of TOSA must give way. This is so because the two sets of provisions cannot co-exist and apply contemporaneously on a subject common to both laws. The two laws emanated from the same law making sources and that being so, they cannot be interpreted in a discordant sense, lest a rein of anarchy takes over. Mischief is never intended in legislations, at least in principle. In so far as the provision of a former law is inconsistent with the provisions of a subsequent law on the same subject, the provisions of the latter law must prevail to the extent of the inconsistency of the former law. And this would be so notwithstanding that the latter law does not expressly repeal the former law. This is the doctrine of repeal or abrogation of a Law by necessary implication. However, for the avoidance of any doubt on the above legal position on the status of the relevant provisions of The Official Secrets Act which are tangentially affected by the Freedom of Information Act, the FOI Act itself rules out the application of those provisions of TOSA in the general overriding, superseding provision/opening sentence of Section 2(1) of FOI Act which reads as follows: “Notwithstanding anything contained in any other Act, Law or Regulation the right of any person to access or request information… is hereby established”. It is elementary that in the rules governing Interpretation of Statutes, when an overriding provision/ statement is used in a law, it has the effect of overriding and brushing aside the law or provisions it is directed at. Now, in the case at hand, it is submitted that the above legal position would still hold notwithstanding that the subject overriding provision is worded in a generalibus sense. This is because although the target Act and Law to be superseded was not specifically stated in the FOI Act, the intended law is easily identifiable by reference to its subject in the light of the objectives of the FOI Act. The statement might well have read as follows: Notwithstanding any contrary provision contained in
any other Act, Law or Regulation…” Therefore the aforesaid provisions of The Official Secrets Act are included in the “any other Act” mentioned in the superseding provisions of S.2(1) of the Freedom of Information Act and as such the said provisions have been superceded by the replacing apposite provisions of the FOI Act. Of course, it would be proper and actually on a firma terra, to argue that the FOI Act should have been direct and specific as to the provisions of the particular law it actually intended to exclude or override. This would obviate the interpretation issue that the above inelegant wording is generating. Offences under TOSA now duties under the FoI Act Also to be added as a weight in support of the above line of interpretation and status of the Official secret Acts vis a vis the Freedom of Information Act, is the express provision of Section 29(1) of the FOI which clearly modified and whittled down the strictness of secrecy on classified matter/information which the Official Secrets Act stands for. The section provides that the fact that any information in the custody of a public institution (which includes the Defence and Foreign Affairs Ministries, Law Enforcement Departments and Agencies) is kept under Security Classification or is Classified Document within the meeting of The Official Secrets Acts, does not preclude it from being disclosed pursuant to an application for its disclosure. The above provisions require no strain in its interpretation. Its pedestrian implication is that the act of disclosure of a classified information which would have earned an offender under the Official Secret Act a jail term of 14 years, is now a compellable duty under the Freedom of Information Act which the officer is obliged to carry out without the fear of beaching any law. Public officers and all encouraged to be whistle blowers Importantly, Section 28 of the FoI Act grants blanket protection and immunity from prosecution to every public officer for disclosure of information, as against criminal liability under The Official Secrets Act. The private individual/corpo-
rate whistleblower and public spirited people are not left out of the new regime of information freedom. The full text of the provision which is plain enough, is worth setting out, as done hereunder: “28 (1). Notwithstanding anything contained in the Criminal Code, Penal Code, The Official Act or any other enactment, no civil or criminal proceedings shall lie against an Officer of any public institution or against any person acting on behalf of a public institution, and no proceedings shall lie against such persons thereof, for the disclosure in good faith of any information or any part thereof pursuant to this Act, for consequences that flow from that disclosure or for the failure to give any notice required under this Act, if care is taken to give the required notice. (2). Nothing contained in the Criminal code or the Official Secrets Act shall prejudicially affect any public officer who without authorization discloses to any person, any information which he reasonably believes to show: a. Violation of any law, rule or regulation. b. Mismanagement, gross waste of fund, fraud and abuse of authority; or c. A substantial and specific danger to public health or safety notwithstanding that such information was not disclosed pursuant to the provision of this Act. (3) No civil or criminal proceedings shall lie against any person receiving the information or further disclosing it” The above is a clear, unambiguous encouragement to every Public Officer as well as Private individuals and companies to freely penetrate, investigate Government and public institutions and speak out against any rot in the system; be it in the nature of violation of laws, mismanagement of resources, fraud or abuse of authority. Conclusion The long and short of the foregoing comparison of the provisions of Official Secrets Act and Freedom of Information Act is that, the enactment of the Freedom of Information Act sounds the death knell of the affected obnoxious, freedom limiting provisions of the Official Secrets Act which are now as good as dead, though yet to be interned. But of what use is the hacking of the limb of a dead horse? None! • Tairu is a Lagos-based lawyer and Principal Partner in the firm of Nojim Tairu & Co
Immanent dualities?A socio-legal analysis of the character, attainments, and limitations of Gani Fawehinmi’s human rights praxis • Continued from last week
T
HE Possibility of Human Rights Activism beyond the Typical NGO Model An important, if under-studied, part of Gani’s genius as a human rights defender was to alert Nigerians and the world tothe possibility of undertaking successful human rights praxis in Nigeria and elsewhere, as a self-described human rights activist,in a way that differed significantly from the dominant or typical Nigerian human rights NGO model (while still resembling it in certain respects).Gani’s human rights praxis in fact modelled that possibility, and demonstrated this still uncommon phenomenon. Space does not allow for a detailed development here of the character of the human rights NGO model against which Gani’s work is being compared, but as that has been done in great detail elsewhere, it will suffice for present purposes to reference and utilise the analytical conclusions of that other discussion, albeit in their very broad
By Obiora Chinedu Okafor
outline. First, it is safe to say that the inauguration of Gani’s human rights struggle was motivated by many of the same concerns that led to the formation of the relevant NGOs (resistance to military rule, pro-democratic yearnings, defense of the CP rights of Nigerians, etc).113 But, as we have seen,he focused attention on ES rights from the very beginning of his career.This was not the case with most of the NGOs; at least not until recently. Similarly, Gani differed from most of these NGOs in the way he consistently treated ES and CP rights as integrated categories, and not as alternative or exclusive categories.115 Yet, like most of the NGOs (at least until recently),Gani focused very little, if at all, on gender as a discrete category/area of human rights work.In terms of its composition and structure, Gani’sowner-dominated, partner-less, democracyless, human rights law office looked rather similar to that of
most of the NGOs; for (with a few exceptions) most Nigerian NGOs are not and have never been membership or internally democratic groups. However, Gani’s National Conscience Party, which was basically a human rights organization, is membership-based. This attenuates the force of this criticism to some extent, though not completely. In terms of its geo-political location, much like most of the NGOs (at least until fairly recently), Gani’s human rights work tended to be centered in the Lagos (South-Westernmost) areaof Nigeria where his office was located. Again, like the NGOs to which he is being compared, his human rights work was also a largely urban affair.And like most of the NGOs, Gani did consistently participate in “coalitions-of-the willing” with kindred human rights spirits.But much unlike almost all of the relevant NGOs,Gani shunned foreign funding of his human rights work. Indeed, he consistently denounced such foreign financial help as problematic for the independence of
Nigerian human rights defenders.In his characteristically provocative words: “I have always opposed it from the word go. Today, Nigeria has at least 400 human rights groups. Most of them are funded from abroad. There is a danger…I don’t want a second slavery ... But if they have to rely on foreign fund[s], then the fund[s] must be regulated.” It is important to note here that Gani’sstrong aversion for foreign funding was sustained in part by his ample means and alternative funding strategy of earning money from his other legal cases and publishing law reports for commercial gain.He was financially successful as a lawyer and law publisher. This was not the case with mostother human rights activists in Nigeria’s depressed socio-economic conditions. From the above discussion, it is clear that the two main differences between the Gani-ist model of human rights praxis and the typical NGO-ist model were that: (a) from the very beginning and through-
• The late Chief Fawehinmi
out his career, Gani took ES rights seriously and integrated them squarely into his human rights praxis, while the same cannot be said for the typical self-described human rights NGO in Nigeria; and (b) while foreign funding was, for a number of understandable reasons, the mainstay of the typical NGO, Gani did not accept foreign funding and rejected it as a poisoned chalice of sorts. Interestingly, these two points are deeply related. • To be continued next week