EFCC FOI denials: A Remedy

by Bob MajiriOghene Etemiku

Matters related to Freedom of Information denials by the EFCC reared a head recently at a seminar organized by an NGO in Benin City. Since signing up or onto the Open Government Partnership, OGP, the Edo state government has sought to work with civil society to realize a partnership based on the idea of ‘co-creation’. Part of the action plan is to push for openness, accountability and transparency in governance. It also involves the often argued issue of ‘domestication’ of international treaties and laws that Nigeria is signatory.

And therefore, in line with the idea that a ‘domesticated’ FOI law is going to be functional in Edo state just the way it is at the Federal level, organisers considered it wise to bring journalists, civil society activists and stakeholders together to look at firming up the ‘domestication’ of the FOI, so that at the end of the day nobody would complain that they were not involved in shaping a domestic FOI for Edo state.

So, what are the issues? They are many but this discussion focusses on issues of frivolous denials of requests for information by MDAs, and the inability of the law to protect the rights of an applicant under Section 21 of the FOI. There are many instances as well, where the law empowers a denial – national security, international affairs and all other situations highlighted under Section 12, and which a public official may cite in denying a request for that piece of information. The onus therefore falls on the applicant to want to use the services of a lawyer to make an appeal against a denial. In that case, several nuances within the context of that appeal makes it very difficult for that appeal to hold simply because the case would be heard before a judge, and ‘summarily’ handled (whatever that means). To be clear, the applicant would be needing something close to N200, 000.00 (two hundred thousand naira) to hire a lawyer to pursue his appeal. And the result of that appeal could go either way. What then this means is that the applicant’s inability to afford the legal fees effectively checkmates his/her right to ascertain if the denial by the MDA is a frivolous one or not.

Recent reports have indicated that a new law for the EFCC will make provision for an ombudsman to be known as ‘director general’. Even though we believe that that position is totally unnecessary, what we believe has precipitated it is the sometimes arbitrary disposition of the EFCC in handling FOI Requests. We say this with all sense of responsibility and refer anyone in doubt, to the EFCC-FOI page on its website. There the EFCC says in her ‘Report made in compliance with section 29 of the Freedom of Information Act 2011, that (i) it has only received 10 applications and processed them all within 5 days, (ii) that all applications received and denied under the FOI fall under section 12 (1) (a) (vi) (ongoing criminal investigation) and (iii) that there have been no appeals whatsoever to their denials and rejections.

Now, just as the law empowers the applicant under Section 2 or 4, so it does in balancing the ‘right’ of the public institution to refuse to give you information. It will be good to realize that if a public institution like the EFCC refuses to give you information, it must be information it guards very jealously and which might be information likely to frustrate ‘ongoing investigations’. But at what point do we draw the line between arbitrary refusals on the basis of ‘ongoing investigations’, to the point where refusing to give information actually scuttles that investigation and jeopardizes it? At what point can an institution like the EFCC actually know as a matter of fact that information it gives you on the basis of the FOI will jeopardize an ongoing investigation?

So let’s say that as a citizen or as a journalist (who has all the time in the world), that I actually came up with the fee for an appeal, have appealed against the EFCC denial and won the appeal. What then happens? Section 7(5) of the FOI Act 2011 recommends that if a case of wrongful denial of access is established, ‘the defaulting officer or institute shall on conviction be liable to a fine of N500,000.00(five hundred thousand naira)’.

But what does the above mean for a fact, considering that the EFCC has said on its website that no one has actually appealed against denials of requests for information? Does awarding an applicant half a million have served the public interest, helped an ongoing investigation or actually deterred the public institution from frivolous or arbitrary denial of requests for information? What then happens to an item of information which becomes stale because a refusal has been proven by law to have been unreasonable? How has these frivolous denials actually helped an ongoing investigation, judging from the fact that so many EFCC cases take close to ten years or more, and at severe costs to prosecute?

Prior to the announcement of a plan by the Federal government to repeal the EFCC Act (2004), and replace it with an ‘efficient’ EFCC 2020 Act, we recommended to the seminar in Benin City that a N10million award be to the applicant proven by a court of law to have been arbitrarily denied requested information. We make this same recommendation to those who are thinking of repealing the EFCC 2014. But why N10million – N10million because that amount would make a public official weigh the matter carefully first before latching on to Section 12 to slap an applicant with a denial. It does nothing to enrich anyone, yet provides a safety net for the process and strengthens it. Getting a director – general to make the EFCC ‘more efficient’ will compound matters and make the commission slower and clumsier than it is. In our line of work, we have found out that rather promote an investigation, a frivolous denial actually messes it. A denial can be an opportunity as well – we have found out that some of the information the EFCC hoards or declines to give is already out there on the streets and seeking it from the EFCC is basically to ascertain its veracity and credibility. That – should be the spirit behind the passage of the FOI Act 2011.

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