CONSTITUTIONAL LAW II

ASSIGNMENT II

Question: For the advancement of democratic principles in a country, there must be adequate

flow of information between the government and the people, and there must also be availability

of access to information by the people especially the information in the custody of government.

How is this true in Nigeria? Discuss this in relation to the right of access to Information by

individuals.

MUHEEBUDEEN BUSHRA AYEGBAMI

A00023193

17-04-2023.

WORD COUNT: 2180.

In a democratic government or country, there is what we regard as a social contract existing

between the people and their government or leaders. The social contract in this context entails

that the people submit their rights to the ruler/leader who in turn gets these rights protected. The

rights of people as citizens of a particular country have been categorized into the economic,

social, cultural, civil and political or democratic rights. While the first four categories are

commensurately of civic importance, the fifth category i.e., the political or democratic rights is

of essential discourse in this paper.

Democratic rights of citizens form part of the rights that citizens enjoy in a democratic setting.

The elected government is prohibited from committing excesses towards the common public by

the existence and protection of these rights. It is said that for the advancement of democratic

principles in a country, there must be adequate flow of information between the government and

the people, and there must also be availability of access to information by the people especially

the information in the custody of government.

I shall be evaluating the above thesis on its genuineness in Nigeria by the discussing in relation

to the right of access of information by individuals.

Democracy is defined as a form of political association in which the general control and

direction of the commonwealth is habitually determined by the bulk of the community in

accordance with understandings and procedures providing for popular participation and consent.1

A citizen is one who is a member of the state and enjoys the social and political/democratic

rights of being a citizen.2 Consequently, the rights of citizens are privileges enjoyed by

individuals by virtue of being citizens of a state or country.

The fundamental rights of citizens as citizens are categorized into political/democratic and

civil/social rights. The social rights involve the right to life & security, right to family life, right

to own property, right to work, right to work, etc. The political rights on the other hand, are right

to vote and be voted for, right to petition, right to criticize the government, etc.

The right to the freedom of expression of individuals has been grouped into the civil rights

category by some textbooks and professors and into the political rights group by some others.

However, that is not the point of this paper. The right to freedom of expression is guaranteed

under the Section 39 of the Constitution of the Federal Republic of Nigeria3. This right entails

that every single citizen is entitled to own his own opinion and can voice out this opinion at

gatherings or handles so far these opinions does not amount to slander of another person since

that would mean a breach of the other’s right. The right to freedom of expression also contains

the right to access of information of government to the citizens. The citizens in a democratic

should have important information about their government and their policies.

1
Charles E. Merriam, "The Meaning of Democracy," Journal of Negro Education, (1941): 309-317.
https://www.jstor.org/stable/2292736.
2
Joynal Abdin, "Rights and Duties of Citizens," SSRN Electronic Journal, (2008).
https://doi.org/10.2139/ssrn.1116902.
3
Constitution of the Federal Republic of Nigeria, Act No. 24, 5 May 1999.
RIGHT OF INFORMATION OF GOVERNMENT IN NIGERIA

In Nigeria, the right of information of government is being encouraged by various stakeholders

in the country, the Freedom of Information Act (FOIA) could be regarded as an output of this

encouragement. The Freedom of Information Act being an expansion of the Section 39 of the

1999 Constitution of Nigeria, was enacted 12 years ago by the government of the Former

President Goodluck Jonathan on the 28th of May, 2011. The Act was to serve the purpose of

making public records and information more freely available, public access to public records and

information, protection of public records and information to the extent consistent with public

interest. The Act gives a person, group, association or organization the right to access

information from Government Agencies, Parastatals, Federal Civil Service, Private and Public

sector organizations. The Section 1 of the Act4 provides:

i. Notwithstanding anything contained in any other Act, law or regulation, the right

of any person to access or request information, whether or not contained in any

written form, which is in the custody or possession of any public official, agency

or institution howsoever described, is established.

ii. An applicant under this Act needs not demonstrate any specific interest in the

information being applied for.

iii. Any person entitled to the right to information under this Act, shall have the right

to institute proceedings in the Court to compel any public institution to comply

with the provisions of this Act.

4
Freedom of Information Act, 2011.
Access to information is one of the fundamental requirements of having a viable democracy in

any country, this is to say that the tendency to withhold information from the people at large

should be limited to the extreme possibility.

In the case of Martins Alo v. Speaker, Ondo State House of Assembly & Anor5, The Court of

Appeal held that all states are bound to accede to requests for information on public expenditure

under the Freedom of Information Act. Per Abdullahi, JCA:

“Looking at the long title of the Freedom of Information Act, 2011, as quoted earlier in

this judgment, it could be deduced therefrom that the National Assembly intention is to

regulate access to 'Public Records'.

The Act was enacted by the National Assembly in exercise of its legislative powers

pursuant to Section 4 (1), (2) and (3) of the 1999 Constitution. It is therefore

constitutional.

I am of the opinion that 'Public Records' is synonymous with 'Public Document' which

the Evidence Act, 2011, defined in Section 102. There is nothing to show that using such

definition resulted in expanding the law, rather it is in aid to interpret the intention of the

Legislative Body vis-a-vis the promulgated 'Freedom of Information Act, 2011'.

Information can conveniently be given from 'Records', as such the argument of the

Respondents that what the Appellant requested for was information and not Records

cannot be used to defeat the purpose for which the request was made. Information can

always be gotten from 'Records' and or Documents as the case may be.

5
Martins Alo v. Speaker, Ondo State House of Assembly & Anor (2018) LCN/11169 (CA).
 Since 'Public Records' is a matter listed in the "Concurrent Legislative List" the Freedom

of Information Act, 2011, is to my mind binding on all States of the Federation by virtue

of the age-long Doctrine of Covering the Field. See the cases of A. G. FEDERATION V.

A. G. LAGOS STATE (SUPRA) AT P. 306 PARAS. C-E; LAKANMI V. A. G.

WESTERN REGION (1970) 6 NSCC 143 and A. G. OGUN STATE V. A. G.

FEDERATION (1982) NSCC 1 @ 35.

Flowing from the above, I hold that 'Public Records' in respect of which the Freedom of

Information Act, 2011, was enacted is contained in the "Concurrent Legislative List" and

therefore makes the Act not only constitutional but binding on the States by virtue of the

Doctrine of Covering the Field.”6

However, in a more recent case of The Governor of Delta State of Nigeria v. Edun Ogheneovo

Olukunle esq.7 The Respondent is a legal practitioner and was the immediate past Chair of the

Nigerian Bar Association, Warri Public Interest Litigation Committee. He filed an action to

challenge the constitutionality of the establishment of a Christian Pilgrims Welfare Board and

Muslims Pilgrims Welfare Board (2nd and 3rd Respondent at the trial Court) in the face of the

secularity of the Federal Republic of Nigeria as enshrined in Section 10 of the 1999 Constitution.

Prior to initiating the action at the Delta State High Court, the Respondent made a request

pursuant to the enabling provisions of the Freedom of Information Act, 2011, regarding the

operations, funding, list and names of sponsored pilgrims, modalities for selecting pilgrims and

so forth, which request was ignored/refused, and this compelled the Respondent seeking judicial

determination of the legal obligation of the Appellants.

6
Martins Alo v. Speaker, Ondo State House of Assembly & Anor (2018) LCN/11169 (CA).
7
The Governor of Delta State of Nigeria v. Edun Ogheneovo Olukunle esq. (2020) LPELR-51263 (CA).
The Delta State High Court granted the reliefs of the Respondents in part and further directed

that all further releases/funding to the Christian Pilgrims Welfare Board and Muslims Pilgrims

Welfare Board be ceased, until the Order to provide information requested for by the respondent

is complied with within two (2) weeks of the Order. Aggrieved, the Appellants appealed to the

Court of Appeal.

The decision held being that a State Government cannot be compelled to disclose any

information or document where it refuses to disclose same. Per DANJUMA, J.C.A:

“Could it have been the intention of the law makers that the State Ministries, Parastatals,

Agencies, and which are not specifically mentioned in the Act would be covered by it and

even when that could lead to an invasion into the confidentialities and privacy of the

patrons of State Agencies in manners not contemplated by the State and not in the interest

of the peace, order and good governance of the State? And in matters within its

legislative powers? Each component State does have powers under the Constitution

pursuant to the concurrent legislative list schedule to make its laws relating to discoveries

and demand of records, information, etc; and until and unless made, a State is not bound

to supply or provide and an Applicant is, ipso facto not entitled, as of right to have such

records or information. Where, he seeks and it is refused, there does not exist a justiciable

cause of action. The FOI Act is, to me, therefore, a legislation of high persuasive value to

States including Delta State and Local Governments but without any element of legal

compulsion; rather it is a legislation of moral suave and coloration; as relating to State

Governments. I agree with the Appellants counsel when he relies on the case of

Economic and Financial Crimes Commission Vs. Ekeocha (2009) FWLR pt 458, page

310 at 323 and Awuse Vs. Odilli (2004) 8 NWLR (Pt 876) pg 418 @ pg 512 in urging
 that this issue be resolved in favor of the Appellants. It must be reiterated that the fact of

having the FOI Act in the concurrent legislative list of the Constitution also re-enforces

the argument that it is not in the exclusive domain of the Federal Government and thus

depriving the States from controlling same. That being the case, the denial or refusal by a

State or any of its Agencies of any information or document, cannot be compelled and to

have as a basis the authority of this Act of the National Assembly. See Babale Vs. FRN

(2019) 1 NWLR Pt 165 2100.”8

CONCLUSION

No doubt in a democracy, the people must be able to hold the leaders accountable for their

actions and policies. For transparency and accountability sake, the people need to have adequate

information about the government to properly criticize their actions. Thus, it follows that for the

advancement of democratic principles in a country, there must be adequate flow of information

between the government and the people, and there must also be availability of access to

information by the people especially the information in the custody of government. However, in

Nigeria, following from the instant case cited above, it seems as though the right of access of

information has not reached such level in the country where it becomes justiciable throughout the

republic of Nigeria. It appears that it only applies to federal agencies, officials and parastatals as

this is the position of the law as at the time of this paper. It is my hope that the Supreme court

would have a chance to rule on this subject matter and that a proper interpretation that would

best reflect the purpose and intent of the lawmakers would be set as binding precedent and the

law.

8
The Governor of Delta State of Nigeria v. Edun Ogheneovo Olukunle esq. (2020) LPELR-51263 (CA).
 BIBLIOGRAPHY

Abdin, Joynal. "Rights and Duties of Citizens." SSRN Electronic Journal, (2008). Accessed

April 28, 2023. https://doi.org/10.2139/ssrn.1116902.

Constitution of the Federal Republic of Nigeria, Act No. 24, 5 May 1999.

Freedom of Information Act, 2011.

Martins Alo v. Speaker, Ondo State House of Assembly & Anor (2018) LCN/11169 (CA).

Merriam, Charles E. "The Meaning of Democracy." Journal of Negro Education, (1941): 309-

317. Accessed April 28, 2023. https://www.jstor.org/stable/2292736.

The Governor of Delta State of Nigeria v. Edun Ogheneovo Olukunle esq. (2020) LPELR-51263

(CA).