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The Ondo State Government has challenged the ruling of the Court of Appeal which said earlier this year that the Freedom of Information Act is also applicable to all the 36 states of the federation, bringing the country closer to a permanent decision on a law state governors are fighting to weaken despite its popularity.
The Speaker of Ondo State House of Assembly and the Auditor-General have filed a notice of appeal to the Supreme Court, saying the Akure Division of the Court of Appeal erred when it ruled in March that the state cannot continue to deprive residents of audited government accounts following the enactment of the Freedom of Information Act.
The June 4 appeal notice, filed by lawyers at Ondo State Ministry of Justice, insisted the FoI is a federal statute and state governments, as independent federating units, cannot be subjected to its enforcement. The lawyers argued that the language of the FoI law was not in the exclusive or concurrent legislative list, which makes it a residual function for which states are allowed to exercise discretion on whether to implement or not.
“The term information or freedom of information is neither in the executive legislative list nor the concurrent legislative list of the second schedule to the Constitution,” the lawyers argued in their submission to the Supreme Court. “The power of the federal government to make law only extends to matters or items listed in the executive legislative list or the concurrent legislative list.”
Consequently, the state concluded that the FoI law is “a residual matter only” for which states have “legislative competence” to approach.
Specifically, the state said the three senior judges who decided the matter at the Court of Appeal did not understand the difference between “public record” and “information”, saying the Constitution distinguished between both.
The Nigerian Constitution defines exclusive list as areas the federal government has exclusive legislative powers. There at 68 of such items, which range from defence and foreign affairs to maritime and patents.
Concurrent legislative list includes issues that both the federal and state governments share legislative powers, ranging from health and education to road and housing. Where there is a collusion in exercising concurrent powers, the federal government’s authority will supersede.
Leftover powers not specifically listed in either exclusive or concurrent legislative list are considered residual and this could include matters on traditional titles. State governments often exercise powers on issues on the residual list, and courts can intervene if there is a clash with the central government.
The lawyers also raised a string of technical objections to the decision of the Appeal Court, including an affidavit they said was not properly filed and a relief which the judges granted but which they argued was out of their purview.The notice was filed about 10 weeks after the Court of Appeal’s decision, which came in a lawsuit filed by Martins Alo.
Mr Alo, a journalist and public policy expert, resident in Akure, the state capital, approached Ondo State High Court to compel state government to release its audited report from 2012 to 2014, saying he needed the information to properly access how public funds are utilised in the state.
Williams Akintoroye of the Akure Division of Ondo State High Court ruled in 2016 that Mr Alo cannot stand on the FoI law to demand how the state was using public funds, saying the law was not applicable to states and the request was not in public interest to begin with.
Mr Akintoroye also awarded a damage of N10,000 against Mr Alo, which he said must be paid to the state for wasting its time and resources by bringing the suit.
Mr Alo’s lawyers appealed the ruling on behalf of their client, arguing that Mr Akintoroye’s judgement was faulty and that their client was acting in public interest.
The appellate court panel, which included Uzo Ndukwe-Anyanwu, Obande Ogbuinya and Ridwan Abdullahi, rejected Mr Akintoroye’s ruling and agreed with the appellant that the FoI was applicable to states and it was in public interest for the state government to release its audited report.
Mr Ndukwe-Anyanwu, who wrote the unanimous opinion, said Mr Alo has a right to act on behalf of the public to obtain the information from state authorities. He also quashed the N10,000 fine imposed by the lower court.
“In a democratic dispensation, such as the Nigeria’s, the citizens have been proclaimed the owners of sovereignty and mandates that place leaders in the saddle,” Mr Ogbuinya said in his concurring opinion.
The citizens have a right to know details of “expenditure of public funds generated from their taxes,” the senior judge added.
Before filing the appeal notice at the Supreme Court, Ondo State authorities had declined fresh request for the release of the audited report from Mr Alo’s lawyers, according to documents seen by PREMIUM TIMES. The lawyers, Femi Emodamori and Co., had written to the auditor-general on May 5, asking him to comply with the Court of Appeal ruling and immediately disclose the audited account of state government as indicated in the lawsuit.
In a reminder letter on September 4, Mr Emodamori, who is the senior partner at the law firm, said the auditor-general risked contempt charges by continuing to withhold the information despite the Court of Appeal ruling.
“They are put there to manage our resources and now they do not want to be accountable,” Mr Alo told PREMIUM TIMES by telephone Thursday night.
Two lawyers who examined the notice of appeal at the request of PREMIUM TIMES Thursday evening said the grounds adduced by the state were too weak and may not hold at the Supreme Court.
“This is a distinction without a difference,” said Liborous Oshoma, a legal practitioner in Lagos. “The idea that public record and public information are not synonymous is an argument that has no substance.”
Mr Oshoma said the appeal was a waste of state resources, one that was unnecessary because the FoI law is one of the most progressive enactments in Nigeria’s recent history.
“It is unnecessary use of public funds. Any government that is transparent should be willing to give information to the public, failing to do so is suspicious in itself,” Mr Oshoma said. “A government that is progressive would not be finding it difficult to implement a law like a FoI that would enhance development more than anything else.”
The lawyer said it was baffling that the states are not objecting to the law for any faulty provisions, but only because they are afraid of the enlightenment it would engender.
“They are not saying the law is not good, they are only saying it doesn’t apply to them because they know citizens would be more educated on how public funds are spent,” he said. “The law is meant to enhance transparency and accountability, and its defeat for any reason would only drive Nigeria backwards.”
Inibehe Effiong, another Lagos-based lawyer and civil liberties advocate, said Ondo State authorities did not get their argument right, and the appeal would “crumble” as a result.
“The is no difference between public documents or public records or public information,” Mr Effiong said. “And in constitutional law, issues are given very liberal meanings.”
The Supreme Court has not given a date for hearing on the matter, both parties in the matter told PREMIUM TIMES Thursday night. An Ondo State official told PREMIUM TIMES the state might get support from Lagos State Government when hearing commences on the matter at the Supreme Court.
Lagos State, which is perhaps the most notorious amongst the opaque states depriving residents of basic details of government operation, has continued to fight the FoI law despite being ordered to comply by its courts. Like Ondo, Lagos has also appealed judgments for it to open its books, and was recently found to be defiant of verdict of the Court of Appeal in Akure.
The case between Mr Alo and Ondo State may be the first the Supreme Court would take up on FoI, which was signed into law by President Goodluck Jonathan in 2011. It was not immediately clear whether appeals from other states would reach the Supreme Court before hearing starts on the one from Akure, or whether they would be consolidated if they arrive together.
Taiwo Olubodun, a lawyer at Ondo State Ministry of Justice who co-filed the appeal notice, said the state has a strong case with the argument that information or freedom of information is neither in exclusive nor concurrent legislative list.
“We have a strong case,” he said. He declined to take further questions, saying “everybody should wait until we file our full argument when the Supreme Court opens for trial on the matter.”
Still, all the lawyers agreed the law is what the court says it is, and it is always good to challenge matters in court.
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