The increasing cases of harassment, detention and arrests of journalists by security agencies in Nigeria have generated a great deal of concern among citizens.

The situation has brought back memories of the past when Nigerian journalists, under military governments, were hounded, abducted, detained, imprisoned and even assassinated.

Also, the present situation has led to questions on whether the nation is speedily returning to the military era.

About a month ago, Isaac Bristol, a man the National Cybercrime Centre (NCCC) of the Nigeria Police Force (NPF) claimed to be whistleblower PIDOM NIGERIA, was arrested.

READ ALSO: I’m Not PIDOM, Isaac Bristol Insists

Despite Bristol’s insistence that the police had arrested the wrong person, he was charged to the Federal High Court, Abuja, on a nine-count charge on Monday.

One of the nine charges read: “unlawfully obtaining, retaining and disseminating classified secret documents in contravention of the Official Secret Act (OSA) 1963.”

With the incident not appearing to go away soon, FIJ decided to seek the opinion of constitutional lawyers on the following questions:

Bristol being PIDOM or not, at what point does a journalist’s or whistleblower’s freedom to access information become limited by the OSA or the Freedom of Information Act (FOIA) 2011?

Do the FOIA’s provisions override those of the OSA? Is a journalist or whistleblower automatically a criminal for sharing information previously categorised as classified?

JOURNALISTS MUST SHARE INFORMATION THAT PROTECTS PUBLIC INTEREST

Festus Ogun, a Lagos State-based lawyer, told FIJ in an interview that a journalist could make public any information that protects the interest of the public.

“If any information protects public interest, a journalist has the rights to release it to the public,” said Ogun.

“A journalist who has exposed an illegal move made by the government, especially a move that can endanger the society, has every right to do so.

“A journalist should not see a document that conceals acts of corruption, impunity and an abuse of power by the government and not expose it. No matter how secretively classified that document is, exposing it cannot be said to be a violation of any law.

“The duty of a journalist is not to report what the authorities want reported; it is to report and expose to the public information that are deemed beneficial and crucial to them.”

Ogun told FIJ that the documents under the OSA (1963) couldn’t be said to be beneficial to the Nigerian public.

READ ALSO: BREAKING: Police Pick PIDOM for Arraignment in Court

“Ordinarily, documents under the OSA (1963) cannot be said to include documents that entirely benefit the interest of the Nigerian public,” said Ogun.

“However, and like I said earlier, if a document is one that protects the interest of the Nigerian populace and the public interest warrants that it be made public, there is no OSA provision that makes that a criminal offence. No OSA provision should override public interest.

“A journalist has the responsibility to report and expose what the Nigerian government regards as secret, as long as that secret aligns with the interest of the Nigerian public.

“What is official secret? Is stealing an official secret? Is corruption an official secret? Is the abuse of power and office an official secret?”

On the FOIA, Ogun said the Nigerian government has continued to violate the act in its bid to be unaccountable to the public.

“The experiences in Nigeria have been that of the government consistently withholding vital information that are very important from the public,” said Ogun.

“This is done in their bid not to be transparent and accountable to the people. Even if you go to court to compel them, they will not release such information.

“In a society like ours, an investigative journalist, who, after exploring the FOIA option and not getting what he seeks, now ends up getting the information through other means, ought not and cannot be punished for making such documents available to the public.

“What is regarded as official secrets in Nigeria are majorly matters and documents that exposes corrupt acts and impunity and it is within the rights of the media to make it public.

“It is not a crime to expose the rot in our society and journalists should not be punished for it.”

READ ALSO: IN FULL: All Nine Charges by the Police Against PIDOM in Court

HIGH RESPONSIBILITY ON JOURNALISTS TO BALANCE PUBLIC INTEREST AND NATIONAL SECURITY

FIJ also consulted Abimbola Ojenike, its legal counsel and Managing Partner of Slingstone LP, on the issue.

“In pursuit of the constitutional role of the press to investigate and disseminate the truth, it is expected that a journalist may encounter official information used by the government, disclosure of which is often prohibited,” said Ojenike.

“However, there would be no legal justification for publishing such information if it would be prejudicial to national security.

“This imposes a high responsibility on the journalist to balance the public interest on both sides — the right to information and expression on the one hand, and national security on the other.

“Where no public interest would be served by disclosure of classified matters, or where disclosure puts national security at risk, there is no legal protection.

“Government official secrets cannot be disclosed unless the disclosure serves a compelling public interest. On the other hand, it is not criminal for a journalist to publish what is regarded as “classified matters” where national security is not compromised and disclosure is justified in the public interest.

“The public has a constitutional right to information and the freedom to know, which must not be curtailed by any legislation except where disclosure compromises national security or a law that is reasonably justifiable in a democratic society.”

READ ALSO: ANALYSIS: Every Single Charge Against Isaac Bristol — And His Survival Chances

On whether the FOIA’s provisions override those of the OSA, Ojenike had the following to say:

“The question shouldn’t be whether or not the FOIA overrides the OSA. The FOIA does not grant right of access to all information, and there are public interest exceptions under the FOIA where disclosure will put the defence of Nigeria in jeopardy.

“That is not in any way different from the provisions of the OSA preventing the disclosure of information that will be deemed prejudicial to national security.”