How Buhari can use FoI Act to fight corruption – Maxwell Kadiri

Barrister Maxwell Kadiri was called to the Bar in March 1995. His interest in the Freedom of Information (FoI) Act has earned him the sobriquet of Mr. FoI. In this interview, he speaks about how Gen. Muhammadu Buhari’s administration can use FoI to fight corruption. Excerpts:-

What is your assessment so far on the implementation of the Freedom of Information Act (FoI)?

I would say so far, some positive steps have been taken towards implementation, but there is still a whole lot that needs to happen.
So I won’t use satisfaction as the operative word but I would rather say encouraged by the level of implementation. Which is where I think holding the incoming administration to the terms of their campaign promises to promote FOI compliance and also the anti-corruption crusade is critical.
The FoI act is probably one of the biggest legacies of the Jonathan administration and he needs to be commended for that and posterity will be kind to him on that score. Particularly when you realize how long it took the Bill to become law and then the lukewarm attitude of the administration before him towards ensuring that the executive assent on the Bill was done. It’s not easy anywhere for an administration, the head of an executive arm of government to actually agree to open up the system to be more transparent.

President-elect Gen. Muhammadu Buhari has said that asset declaration would be mandatory, what is your reaction?
There is a lot that the Buhari Administration needs to do. Am also gratified by the fact that I listened to the radio recently, that one of the things he said “would be a cardinal programme’’ of his administration is asset declaration, which is a departure from the Jonathan administration.

He is ensuring that asset declaration is mandatory for all political office holders at the federal level and the state will take a cue from that. He has said not just asset declaration before assuming office but asset declaration when you are exiting office because that is what the legislation actually requires and that is quite laudable and I hope it will be followed to the letter, that political office holders declare their asset. But beyond just declaring the asset, what needs to happen is proactive disclosure of the content of the asset declared as well as allowing access to the details of the declaration forms.

The reason that is important is to allow public interface with the process, because some have alleged that we have people doing anticipatory declaration. So you declare that asset with the hope that you acquired that asset in office, so that it will tally by the time you are exiting office. Now some of those allegations rightly or wrongly cannot be proven or disproven because people don’t have access to the asset declaration details to actually verify whether what the officials has declared is correct or whether its inflated or whether it’s under declaration, so all of these are violation of the legislation.

The code of conduct bureau on its own part has also been linked up to a large extent because they have a standard letter which if you write for access to the asset declaration forms of public officials, they write back to you to say the relevant rules and regulations has not been made by the National Assembly pursuant to the constitutional provision.

Now when you look at the FoI legislation, there is no where it mentioned asset declaration as exempted. The seven exemptions in the act are issue based and asset declaration forms do not form any of those exemptions.
What do you mean by proactive disclosure?
Proactive disclosure is also encapsulated in the FoI Act. If you look at the section 2 sub (3) of the FoI Act, (A) to (F) it actually provides for at least 40 classes of information that public institution should on their own disclose without anybody making a request. So that means you are mandated to do that and not wait for Mr Maxwell Kadiri or Mr Edet Ujo or any other person to go and make a request.
Now what has happened for the most part is that the because of the lack of proper understanding of the FoI Act, most public institutions were not proactively disclosing and when you look at section 2 sub (3) either E or F of the FOI it makes it mandatory that failure to proactively disclose is actionable in court. So that is even a basis for actually filling litigations against public institutions that has falling short of this requirement of the legislation and because of the lack of understanding, most institution feel that the FoI is all about a member of the public coming to make request and that is the only time they can give the information out, that is not the correct position.

The only information that members of the public can make request for are information that are not covered under the proactive disclosure obligation of the legislation.
If you take section 2 sub (3) D(iv) of the FOI it says; income and expenditure of all public institution should be proactively disclosed and if you x-ray many of the request that have been made to public institutions is asking for the salaries or expenditure of public institutions. So if that has been proactively disclosed, will that request have come in the first place?
What are the weaknesses you observed in the implementation of the FoI Act so far?
Public institutions were not proactively disclosed and we are hoping that the incoming administration would insist on proactive disclosure, because that is the major obligation of public institutions under the FOI.
There is also the issue of record keeping which is also a major obligation under the FOI section 2 sub –section (1) &(2) and 9 sub (1) & (2) make it mandatory for public institution to keep records. If the records are not kept what do you disclose?

So in the area of proactive disclosure, there was a major weakness that I hope the incoming administration would correct in the area of record keeping there is a major weakness because what you then find many of the records are not there, even when they are there they are not properly organised to facilitate disclosure because the FoI provides that; the timeline of seven days in the first instance, you can extend by seven days which makes it 14 days and if you are transferring the request you can add another seven days which makes it a maximum of 21 days.

Now in many instances public institutions found it difficult to respond within these timeline, because the records even where they kept are not organised or maintained, which then makes compliance with the timeline a bit of a challenge for them.
The issue of whistle blowing protection, which is a provision in the FoI, section 26 & 27, protects whistle blowers who blow the whistle of wrong doing in government.

For a government that wants to do anti-corruption for a major plank of his policy framework, whistle blowing just as to be straighten as a major policy of government and that again was one major weakness of the process under the Jonathan administration.




Author: Femi Erinle


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