Conflicts over access to information and the application of the government’s security architecture have revealed systemic problems with Nigeria’s laws, leadership and governance processes.

In this struggle, there is a conflict between the Freedom of Information (FOI) Act 2011, the Criminal Code Act, and the colonial-era Official Secrets (OS) Act 1962 No. 29.

In addition to this “square peg in a round hole” concern, it raises questions about the judiciary and security agencies’ ability to prevent democratic backsliding and establish accountability across government institutions.

Abdul Waheed Khan, formerly at UNESCO, stated in  the “Freedom of Information: A Comparative Legal Survey” that the free flow of information and ideas lies at the heart of the very notion of democracy and is critical to effective respect for human rights.

In the absence of respect for the right to seek, receive, and impart information, human rights abuses take place in secret, and there is no way to expose corrupt, inefficient governments.  

In spite of the FOI Act’s assurances of transparency, Nigerians have been denied access to their right to information due to its underutilisation and the gaps in the judiciary and the police.

THE LAWS AT ODDS: A RIGHTS DILEMMA

The OS Act’s is designed to restrict the unauthorised release of official documents in order to safeguard national security by limiting access to sensitive government information.

Meanwhile, the FOI Act, after 12 years, has not proven to be a win for citizens’ right to know government records in Nigeria—a fundamental human right essential for good journalism and bridging the public trust gap.

However, Section 97(1) of the Nigerian Criminal Code considers it a criminal offence for a public official to disclose any information in his or her possession:

“Any person who, being employed in the public service, publishes or communicates any fact which comes to his knowledge by virtue of his office and which it is his duty to keep secret, or any document which comes to his possession by virtue of his office and which it is his duty to keep secret, except to some person to whom he is bound to publish or communicate it, is guilty of a misdemeanour and is liable to imprisonment for two years.”

The FOI Act specifies in its preamble:

“An Act to make public records and information more freely available, provide for public access to public records and information, protect public records and information to the extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences of disclosing certain kinds of official information without authorization, and establish procedures for the achievement of those purposes and for related matters.”

Going further, Section 28 of the FOI Act states thus:

“The fact that any information in the custody of a public institution is kept by that institution under security classification or is classified as a document within the meaning of the Official Secrets Act does not preclude it from being disclosed pursuant to an application for disclosure thereof under the provisions of this act, but in every case the public institution to which the application is made shall decide whether such information is of a type referred to in Sections 11, 12, 14, 15, 16, 17, 19, 20, or 21 of the FOI Act.”

This makes it very clear that the provisions of the OS Act and the Criminal Code that restrict unauthorised access to public information are null and void under the FOI Act.

Indeed, the FOI Act supersedes all other laws pertaining to the disclosure or concealment of public information. 

According to the FOI Act, specifically Section 1(1), it is stated that:

“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, however described, is established.”

Unfortunately, very little has been done to make use of the FOI Act. There is a low level of awareness within the populace and how to obtain access to public information, even though it has great potential.

The media and civil society organisations (CSOs) have not always made effective use of the FOI Act. Except for investigative journalists, the media is considered the “fourth estate of the wreck” instead of the “fourth estate of the realm,“ because they practice what some refer to as “feeding-bottle journalism,” in which government officials provide stories to journalists rather than uncovering them through investigation.

The  FOI Act’s provisions are meant to promote a culture of accountability and transparency by making investigative journalism possible. However, information that might jeopardize national security, international relations, or law enforcement proceedings is exempt from public access according to a number of sections (11-19 and 26) of the FOI Act.

These state secrets laws and national security exceptions are common in democracies, but they have been applied inconsistently in Nigeria, which has further obstructed transparency.

DENIED EQUESS AND EXEMPTIONS: THE OBSTACLES TO ACCESSING DATA

Over the years of the FOI Act implementation, and according to the National FOI ranking, numerous requests have not been responded to or denied by government institutions, on vague justifications stemming from these exemptions.

For instance, in 2017, the Socio-Economic Rights and Accountability Project (SERAP) requested detailed information about public funds spent on fuel subsidies from the Nigerian National Petroleum Corporation (NNPC) through a FOI request. The NNPC has declined several FOI requests, saying they are not a public institution covered by the provisions of the FOI Act.

In 2020, Connected Development (CODE) and SERAP’s FOI request to reveal COVID-19 emergency expenditures was stalled on the grounds that publicizing the information would jeopardise investigations.

In 2024, the Nigerian Upstream Petroleum Regulatory Commission (NUPRC), after three FOI requests from Accountability Lab Nigeria, denied details of the three per cent annual operating expenses being contributed by oil companies to the Host Community Development Trust Fund (HCDTF) in oil-producing communities, as mandated by the Petroleum Industry Act, while referring to the exemption of section 15(1) of the FOI Act related to financial and commercial information.

The Chief of Naval Staff did not respond to the International Centre for Investigative Reporting (ICIR) FOI request on behalf of the National FOI Ranking Cohort regarding the procurement details of the presidential yatch.

Despite the critical importance of the requested information for holding government institutions accountable, these cases demonstrate how exemptions are often used to avoid scrutiny.

A survey of senior members of editorial teams across notable Nigerian newspapers revealed that Nigerian government institutions’ lack of response and disclosure has greatly contributed to the FOI Act’s ineffectiveness for journalists.

Nigerians continue to face barriers to accessing information regarding important national issues due to the selective application of the FOI Act, highlighting the disparity between its intent and its implementation.

Legal interpretations, such as the OS Act and FOI Act complications, necessitate an impartial judiciary. The judiciary should ideally play the role of a neutral arbitrator, policing compliance with the FOI Act and preventing the abuse of exemptions to conceal information that rightfully belongs to the public while balancing the legitimate needs of national security.

Because of political interference and systemic corruption in Nigeria’s judiciary, the government, rather than justice, has consistently disobeyed court orders on multiple occasions, including the famous #GoToCourt antics. The public’s right to information is clouded by legal uncertainty due to inconsistent decisions on FOI requests by various government institutions. Both the FOI Act and Nigeria’s democracy are weakened by this disregard for an impartial justice system.

A non-politicised police force is critical for applying the law fairly, just as an independent judiciary is vital for enforcing it. In saner climes, the police would be free from political interference, defending the rights of citizens and media houses that seek to expose corruption through the FOI Act. Instead of being apolitical, the Nigerian police are frequently manipulated for political ends, stifling dissenting voices and intimidating journalists and accountability-focused CSOs.

Following a WhatsApp post about Lagos Mainland Local Government’s budgetary allocations, police arrested Abdulganiu Olushipo. His WhatsApp message requesting for transparency and good governance angered the local government chairperson, leading to accusations of cyberstalking and cyberbullying, as well as his arrest. When trying to use the FOI Act for investigative reasons, journalists and CSOs are often threatened or harassed. On May 1, investigative journalist Ojukwu disappeared.

Some days later, it was discovered that he was being held at the Nigerian Police State Criminal Investigation Department (SCID) in Panti, Lagos. Okukwu was arrested for his story that exposed the office of the Senior Special Assistant on Sustainable Development Goals (OSSAP-SDGs), who paid a restaurant N147 million to build a classroom in Lagos. The police abducted Ojukwu instead of inviting him, and his release came after 10 days in custody. This perpetuates a culture of impunity, where those in power are shielded from accountability.

The Nigeria Police Force National Cybercrime Center arrested and charged whistleblower Bristol Isaac Tamunobifiri, known as @pidomnigeria on X (formerly Twitter), with violating the OS Act for leaking classified “restricted” documents that revealed government expenditures, including President Tinubu’s spending hundreds of thousands of dollars at the 2023 UN General Assembly on hotel reservations. 

He also exposed the irregularities in Nigeria’s security forces by publishing internal police signals. The police justified the arrest by claiming the leaks posed a threat to national security. This shows how the Nigerian government uses the OS Act to silence journalists and restrict public access to information that could hold officials accountable. The police’s response illustrates the ongoing struggle to balance state security and the public’s right to know, which often favours secrecy and repression.

MOVING FORWARD WITH OPEN GOVERNANCE REFORMS

Public trust declines and democratic backsliding steps in when information access is restricted and the rule of law is undermined. Nigeria needs to make significant changes to its police force and judiciary if it wants to bring the FOI Act up to speed with its current reality. It is important that the judiciary be free from political interference in order to interpret the law impartially.

Fair handling of FOI requests is guaranteed by this, with exceptions granted only in instances of genuine national security or legal concerns. This allows the Nigerian government to renew its Open Government Partnership (OGP) commitment in civic space, justice, and the right to information.

In a similar vein, security agencies must be removed from politics and educated through programs like the Integrity Innovation Lab to uphold the confidentiality of citizens’ and journalists’ information requests. Those who are trying to hold the government to account should be protected, not harassed, by law enforcement—to whom much is given!

It is imperative that the international community, CSOs, and the Nigerian government all work together to make transparency and the rule of law priorities if these reforms are to be successful. Citizens should be able to access government records without fear of retaliation or hindrance if the Nigerian government is serious about open governance. And only then will Nigeria be able to begin its journey towards transparency and building public trust.

Odeh Friday is the Executive Director of Accountability Lab Nigeria.