As Nigeria prepares for the 2015 Elections, Seermber Nyager takes a look at the elections from the perspective of the Freedom of Information, FOI, Act
In June 2014, Primary and Junior secondary schools in Benue State had been on strike for close to a year. Some parents, whose wards attended Local Government schools in Abuja, were reportedly contributing to the building of extra school blocks; raising questions as to what the Federal government’s Basic Education allocations to each state were being used for. This led procurement monitors to commence the long trail of Freedom of Information (FOI) requests to the Universal Basic Education Commission (UBEC) on the utilization of public resources allocated to Free, Basic Education. Looking back, the Freedom of Information Act (FOIA), 2011 has thrown light on some aspects of building a culture of public accountability. Looking forward, there is the opportunity to use the FOIA to preliminarily test the willingness of our prospective Heads of Government towards accountability forming a part of our choice of leaders in the February elections.
The Watchword is Persistence: The default position of several public institutions from whom information is requested is to initially refuse access to such information. It does not matter that you are asking your Government for details of how public resources have been spent. This may stem from the culture of secrecy that has existed in our Government for years. However, what requesting for information under the FOI reveals is that we can all, individually and/or collectively, break that culture of secrecy by persistently making FOI requests.
Knowledge of your Right to Know is an Advantage: When UBEC initially refused to provide access to details of Basic Education expenditure, they relied on an exemption contained within the FOIA. UBEC purported that as details of expenditure contained third party information, it was exempt from disclosing such sensitive information. However, procurement monitors considered the fact that a document such as a procurement plan only details how Government plans to provide a certain good, work or service and cannot be construed to contain the information of a third party that would be harmful to the third party. After considering this, procurement monitors wrote back and explained this to UBEC and used the opportunity to make a further request. After several exchanges, UBEC began to provide the requested information. Knowledge of the right to know is thus an invaluable tool in piercing the veil of secrecy.
Building the Knowledge Base Of Public Institutions: At first, an FOI request seems like a war between the citizen and the custodian of publicly held information, but in the midst of the dialogue that emanates from the FOI requests, reason and understanding is likely to prevail over a culture of secrecy that blocks citizens from participating in their Government. This was the case with UBEC staff who seemed miffed by the constant requests for details of their public expenditure but it created the opportunity for UBEC’s public officers to study the FOIA and respond from a view point of knowledge.
Triggering The Consciousness of Public Accountability: In February, 2014, during a court session at the Federal High Court in Abuja, where procurement monitors were seeking a court order to compel the National Agency for Food and Drug Administration and Control (NAFDAC) to disclose its contracting records for their construction building in Lagos, Justice Kolawole asked law students to attend the hearing and learn the rudiments of public accountability. This provided useful insight into the process of weighing and balancing the issues of overriding public interest over other vested interests when seeking redress for the non-disclosure of publicly held information. .Although at the moment, some FOI judgments confound rather than clarify, we can help to build the knowledge base and capacity of the judiciary to support public accountability when we seek redress in court.
Make The FOIA Work For You: The Right to participate in our Government exercised through the FOIA is available to everyone and not a privilege reserved for procurement monitors. That is why it is refreshing to read of people such as the applicant who sought details of interview results from the Federal University of Petroleum Resources, Effurun using the FOIA. Although the decision to employ may be at the discretion of the employer, if it is employment into a public institution, the employer is obliged to show a higher level of accountability in the selection process .
If You Participate In Public Contracts, You Are Bound By the FOIA: Increasingly, private sector organizations utilize public funds, provide public services and perform public functions. For example, the park and Pay scheme in Abuja was conducted by private sector organizations on behalf of the Federal Capital Territory Administration; Julius Berger is one of the private contractors working on the Lagos-Ibadan express way; and the recently privatized Electricity Distribution companies are providing a public service in the form of Electricity Distribution. According to the FOIA, if you decide to provide public services, perform public functions or utilize public funds, then with regard to that public function being performed, you are a public institution with a duty to provide publicly held information proactively and on request. The courts confirmed this when the Integrated Parking Service was ordered to provide procurement monitors with details of revenue generated from the Park and Pay scheme in Abuja.
An FOI Request Often Leads to a Further Request and Better Informed civic Engaged: For procurement monitors who are bent on tying public resources to the availability of public services, it is a long trail of FOI Requests. It takes patience and time to arduously follow up the process.
When UBEC finally began to provide sufficient detail of their public expenditure, procurement monitors discovered that states such as Benue state were unable to access their matching grants from the Federal Government because they had not provided the required counterpart funding to match the contribution of the Federal Government in the last five years. There is no better indication than budgetary allocations to indicate that education is not the priority of the State and this provides room for informed civic engagement to the Benue state Government to make Basic Education a priority within by ensuring the allocation of counterpart funding to Basic Education at the State.
Insisting On Proactive Disclosure: If procurement monitors have learnt anything in the last year, it is that there is routine information on Public Resource Management that needs to be released before it is even requested for lest there would never be a chance to view the big picture.
The mandate within the FOIA requires information such as those related to Public Resource utilization to be made readily available. Verifiable information here means information that can be officially recorded, stored, accessed and referred to by the public. If people are vying for elected positions, proactive disclosure should form a documented part of their promissory charter of delivery to the electorate because that is a required mechanism for public accountability.
The Need for Data Standards: in 2014, there was a common trend where a specific public expenditure record was represented differently in different documents and across various institutions in custody of that same record. This made it difficult to link information from the budget office for example, to the information on procurement plans because the same information was presented under different headers and titles. There is therefore a need for coherence in disclosing information on public resource utilization.
2014 is behind us. In 2015, we are electing new Heads of Government. It is apt that the measure of public accountability of those we elect to represent us in Government informs how we cast those votes. In a country where public trust is eroded, we must consider how committed those vying for our votes are to public accountability. This is also the best time to demand for public accountability for those who would like to seat on the thrones of Government. Most of the prospective candidates have held significant posts in public service with recorded successes and failures; thus providing us with a baseline to weigh their disposition towards public accountability. Are they taking responsibility for their actions or inactions in those periods? As public officials who would control the utilization of the Nation’s wealth, do they give a damn about publicly declaring their assets? Are they willing to publicly admit to their past human rights crimes and show through their road maps how things would be done differently? Are they willing to set standards to ensure that people can see and understand how the State’s resources are utilized? Are they willing to learn from past mistakes that have been made in governance processes? Do they have any regard for due process in ensuring that the most competent people are selected to provide required goods, works and services? Is there any plan to ensure that Free Basic Education is available and accessible?
Now is the time that we all contribute to ensuring that every elected official and all of their stewards understand that there is a higher calling in public service. This calling requires public officers to be open, responsible and publicly accountable in the administration of Public affairs. But first, we all need to utilize the FOIA to exercise our right to know.
Seember Nyager is CEO at the Public and Private Development Centre