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Introduction
A free, independent, and vibrant press is one of the strongest pillars of any democratic society.
It is against this background that most democratic countries make constitutional provisions for a free press . Others even go further to enact specific laws to make affairs of governments freely available to the public. Currently, there are more than 130 countries in the world that have free press laws. They include Sweden, United States, France, South Africa and Nigeria.
Nigeria did not only make constitutional provisions in Sections 22 and 39(1) of the 1999 Constitution ( as amended) but also went ahead to enact the Freedom of Information Act in 2011.
Section 22 of the 1999 Constitution states: “
“The press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this chapter( ie Chapter II) and uphold the responsibility and accountability of the Government to the people”
Section 39(1) of same Constitution states : “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference” ..
To complement these constitutional provisions, Section 1 (1) of the Freedom of Information Act (FOIA)
states “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.” while Section 2(2), states that: “A public institution shall ensure the proper organization and maintenance of all information in its custody in a manner that facilitates public access to such information”
Primary Purpose of FOIA
According to the Act, its primary purpose is to make information about public records freely available to every Nigerian in the public interest.
Relevance To Journalists And Press Freedom
Although, the law is for every citizen to access public information, it is most relevant to journalists and whistleblowers.
Given the fact that the Act has been in existence for 15 years, how far has it impacted on the scope of press freedom in Nigeria?.
This writer believes that the Act has essentially given legal backing to journalists to request public interest information, expose corruption in public places as well as establish a clear avenue to sue public entities that refuse to disclose information.
NOTABLE CASES IN SUPPORT OF FOIA
Some of the notable cases adjudicated upon to support these arguments during the period include:
Committee for Defence of Human Rights(CDHR) V Economic and Financial Crimes Commission(EFCC) (Suit No.FHC/L/CS/784/2011)
This is the first case that tested the implementation of the provisions of the FOIA. In this case,the CDHR requested the EFCC to disclose its evidence of a bribery allegation it made against some members of its leadership. When the EFCC refused to do so, the CDHR sued the organisation at a Federal High Court in Lagos to release information to back up its claim. In a judgement delivered by Justice Binta Nyako, the EFCC was asked to disclose the information to the public.This judgment opened the door for future litigations on the effectiveness of the Act.
Osakwe & 2ors V Edo State Agency for the Control of AIDS (2025) 3NWLR( Pt 1912) 45 SC April 11, 2025.This is the most notable FOIA case so far as it established the universal application of the FOIA at all levels of government. For many years, state and local governments rejected FOIA requests, claiming that the law only applied at the Federal level. In this case, the Edo State Government argued that the FOIA was a federal law and did not bind subnational governments unless states passed their own version of the law. But in a landmark judgement, the Supreme Court held that transparency obligations under the Act are mandatory across all tiers of government. It reversed an earlier Court of Appeal ( Benin Division) judgement of 2018 on the matter that FOIA did not apply to state governments
Code of Conduct Bureau V Stephen Nwankwo(2018LCN/1183(CA)/2018)LPELR-44321(CA)
The Code of Conduct Bureau refused to release assets declaration forms of public officers citing institutional confidentiality and internal rule akin to secrecy declaration.
The Court of Appeal affirmed Section 27 of the FOIA shielding officials who disclose records from criminal prosecution under the Official Secrets Act.It ruled that public institutions cannot invoke internal administrative rules, civil service oaths of secrecy or legacy classifications to suppress information of public interest.
The judgement established that a public official who releases information in good faith under the FOIA, is legally shielded from criminal prosecution.under the Official Secrets Act or the Criminal Code Act.
FOIA AND ITS LIMITS
Despite these landmark judgements, there are still many obstacles preventing the FOIA from broadening the scope of press freedom in the country.They include:conflicting legislations, exemption clauses, non- compliance by Ministries , Departments and Agencies( MDAs),bureaucratic delays, overzealousness of security officers as well as the plight of the Nigerian press.
Conflicting Legislation
The provisions in FOIA are in conflict with other statutes like the Official Secrets Act, Criminal Code Act, Cybercrimes Act and Nigeria Data Protection Act . They are also in conflict some aspects of our 1999 Constitution. These conflicting laws do not allow effective implementation of the Act.
Exemption Clauses: The Act itself contains many broad clauses regarding national security and internal operations, allowing agencies to legally hide public data from requesters.
Non-compliance By MDAs
Government Ministries, Departments, and Agencies (MDAs) usually ignore or deny formal information requests depending on their interests or fear of superiors.
Bureaucratic and technical delays: Administrative and technical delays are major obstacles to release of information as journalists wait endlessly until the expected stories for which the information is requested, lose news value.
The Official Secrets Act,1962
The Official Secrets Act, (OSA), 1962,a colonial era law currently codified as Cap 03, Laws of the Federation of Nigeria, 2004, is one of the greatest obstacles to the effective implementation of the FIOA because its provisions are in conflict with those of the Act.
While the primary purpose of FOIA is to release information to the public in public interest , that of OSA is to keep information away from the public under the guise of public safety.
While the FOIA provides for openness, the OSA relies on closeness.
It does so to secure public safety by restricting what it calls”Classified matters”
While the FOIA provides for obligation on the part of public officials to release information within SEVEN DAYS of application by citizens , the OSA provides for Oaths of Secrecy by public officials against disclosure of information.
FOIA gives immunity to whistleblowers from civil and criminal prosecution while OSA allows for criminal prosecution leading to fines and imprisonment.
Even though the FOIA provides that the Act takes precedence over other earlier laws like the OSA because it is later in time in line with conflict of laws principle, the opposite is the case in practice as public servants prefer to restrict information because of their oaths of secrecy.
Criminal Code Act
Section 97 of the Criminal Code makes provision for the unauthorized disclosure of official secrets a criminal offence punishable by prison sentence. This is a major hindrance to press freedom.Even if an internal government source wants to help an investigative reporter expose corruption, the thought of criminal prosecution and punishment provided in this section will discourage the source from doing so.
Cybercrimes (Prohibition, Prevention, etc.) Act .
Though, the Cybercrimes Act was originally intended essentially to fight internet fraud, the provisions within the Act have been widely weaponized under the guise of preventing “cyberstalking” or the spread of “false information,” to hinder press freedom.
Security agencies regularly bypass the FOIA framework entirely to arrest, harass and detain journalists and whistleblowers that publish expose using leaked data under the Cybercrimes Act for “causing annoyance or anxiety” to public officials,
Despite the fact that what constitutes cyberstalking in Section 24(1) of the original Act of 2015 has now been redefined in Section 5 of the amended 2024 Act, an individual can still commit an offence if he or she knowingly or intentionally sends or cause to be sent computer messages that are explicitly pornographic, or messages he or she knows to be false specifically to cause a breakdown of law/order or to threaten life. If found liable, the penalties for the offence remain the same as in the principal Act
It is argued that this amended provision is still wide open to interpretation and can be used to stifle press freedom.
Nigeria Data Protection Act(NDPA), 2023
The Nigeria Data Protection Act (NDPA),2023 holds supreme power over any other laws on data handling. It has stringent compliance rules on release of private data to the public.Even though both acts are geared towards transparency, there is conflict between private data protection obligations of the NDPA and open governance rules of FOIA.This is a significant hindrance to the release of certain information to the public.
While the FOIA legally mandates that public institutions respond to information requests within a sevenday period, there is no such short deadline to respond to requests under the NDPA. In most cases, risk averse officers take their time to respond to requests in order to avoid the heavy penalties associated with data leaks, In order to do a thorough job, they meticulously scan, review, and redact sensitive personal information from electronic records before releasing them.
Unfortunately,most agencies in the country lack the technical tools or legal expertise to do this as quickly as requesters will want them to do, resulting in delayed or outright denial of FOIA requests.
Exemption Clauses Within The Act
The FOIA itself recognizes that unrestricted disclosure is neither practical nor desirable.
Under Section 11 of the FOIA, a public institution is legally permitted to deny a request if the disclosure of the information would cause identifiable injury to the defence of Nigeria or its international conduct.
Under Section 11(1), ,a public institution may refuse to disclose information if its release may reasonably be expected to be injurious to:
The Defence of the Federation: Information regarding active military strategies, deployment patterns, weapons capabilities, or intelligence operations
International Affairs: Highly sensitive communications or diplomatic agreements between the Nigerian government and foreign states, international bodies, or alliances.
Law Enforcement and Security Investigations: Under Section 12,records that could compromise ongoing criminal investigations, reveal the identities of confidential informants, endanger individuals or jeopardize such investigations.
The only limitation here,however, is that public interest in disclosure should be weighed against the harm of releasing such information.
The Constitution
As I have emphasised in previous articles, the constitutional provision in Section 22 is not justiciable by virtue of Section 6.6(c) of same constitution.
Although, Section 39(1) of the 1999 Constitution guarantees freedom of expression, Sections 39(3) and 45 permit restrictions on these rights in the interest of defence, public safety, or public order.
Since constitutional law overrides statutory law, government lawyers use these broad “public interest and safety” caveats to argue that state security overrides a journalist’s right to access such information, making the FOIA a subordinate law when national security matters are involved.
The Plight of the Nigerian press
Journalists in Nigeria are given responsibility without empowerement.They are to make government accountable to the people but they are not adequately protected to discharge this responsibility. They are randomly attacked, harassed and intimidated and even killed by overzealous securitymen in the course of performing their duties.
Most media houses do not provide good working conditions for their employees. Salaries and allowances are either paid late or not paid at all. In most cases, there are neither pension benefits nor insurance cover for the workers. Under these conditions, many journalists are prone to compromise on ethics and are also not ready to take the risk of acting as whistleblowers by ensuring they get information on public- interest matters from public institutions
Conclusion
The FOIA has undoubtedly transformed Nigeria’s transparency landscape by creating a legally enforceable right of access to public information and strengthening investigative journalism.
However, it has not done enough to effectively promote press freedom.
To realize the full promise of the FOIA, there is need to harmonize conflicting legislations, reform outdated secrecy laws, strengthen institutional compliance, improve public record management, curb the abuse of powers by overzealous security menas well as invest in the welfare and safety of journalists.
Ogbamosa, a legal practitioner/Communications Consultant, wrote via :mack_ogbamosa@yahoo.com
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