by Ajuzie Osondu

It is now clear from the above provision that a public officer can now disclose to any person, including the press, information which he or she reasonably believes to show a mismanagement or gross waste of funds, fraud, and abuse of authority without the risk of facing criminal prosecution.

In the wake of recent allegations of fraudulent purchase of two armoured vehicles by the Nigerian Civil Aviation Authority for the Honourable Minister of Aviation, Stella Oduah, there have been reports of attempts to sidetrack the crux of the matter – official corruption, and be chasing those who revealed information relating to the purchase.

There is no doubt that if they are found, their “heads will roll”.  As a legal practitioner, I am not unmindful of the fact that this is still a mere allegation until the truth of the matter has been established.  I am also aware that the president has set up a three-man committee to investigate the allegations against the Honourable Minister of Aviation.  This is consistent with the twin maxims of natural justice, namely, audi alteram partem (listen to the other side before you come to a conclusion) and nemo judex in causa sua (no man shall be a judge in his own cause).

I say this because the concept of natural justice originated from God himself in the Garden of Eden.  As an omniscient God, He knew that Adam and Eve had eaten the forbidden fruit, but God did not go straight to deliver judgment.  He gave them opportunity to explain themselves.  He still asked them if they had eaten the forbidden fruit, and as they confessed to it, there was no doubt that they were guilty, and accordingly, God pronounced them guilty as charged and then handed down their judgment.  (See Genesis chapter 3 v 1ff).

I have said all these not to defend the Honourable Minister, or condone official corruption in Nigeria.  On the contrary, I want to use this medium to point out the interplay between official secrets, official corruption and the Freedom of Information Act and how this can be used to fight and indeed reduce official corruption in Nigeria.  The laws relating to official secrets are laws that forbid civil servants from divulging information in their possession without authorization by the appropriate authority.  I want to point out that the law on official secrets has been used to promote official corruption in our governmental systems over the years.

This offence is provided for in Sections 59 and 60 of the Criminal Law of Lagos State and Section 97 of the Criminal Code Act as well as under the Official Secrets Act and other legislations.  The provisions are targeted at employees in the public service, which will include workers in the federal and states ministries, agencies, parastatals and similar organisations.  The import of the provisions is to the effect that any employee of such organisations who by virtue of his office or employment is in possession of information or document considered to be secret and as such ought to be kept secret and who without authorization discloses or hands out such information or document commits an offence for which he is liable to a term of imprisonment of between 1 and 2 years or even more.

However, it is believed that recent developments in our laws have whittled down the effect of these provisions on official secrets.  This is by virtue of the provisions of the Freedom of Information Act, passed into law by the National Assembly in 2011. By virtue of Section 27 of the Act, the provisions of various legislations which criminalize disclosure of official secrets have been made subject to the provisions of the Freedom of Information Act.  The provisions of Section 27 of the Act are reproduced below:

“Notwithstanding anything contained in the Criminal Code, Penal Code, the Official Secrets Act, or any other enactment, no civil or criminal proceedings shall lie against an officer of any public institution, or against any person acting on behalf of a public institution, and no proceedings shall lie against such persons thereof, for the disclosure in good faith of any information, or any part thereof pursuant to this Act, for any consequences that flow from that disclosure, or for the failure to give any notice required under this Act, if care is taken to give the required notice.

“Nothing contained in the Criminal Code or Official Secrets Act shall prejudicially affect any public officer who, without authorization, discloses to any person, an information which he reasonably believes to show (a) a violation of any law, rule or regulation; (b) mismanagement, gross waste of funds, fraud, and abuse of authority; or (c) a substantial and specific danger to public health or safety notwithstanding that such information was not disclosed pursuant to the provision of this Act.”

It is the humble view of this author that although public officers now enjoy some protection or immunity for disclosing certain information by virtue of Section 27 of the Act, a better approach would have been to altogether repeal the Official Secrets Act and the relevant sections of the Criminal and Penal Codes and other laws that made provisions relating to official secrets so that a single legislation, the Freedom of Information Act, would govern this subject.  Such an approach, it is submitted, would be justified under the doctrine of covering the field notwithstanding any arguments to the contrary.

Under the doctrine of covering the field, where the National Assembly and a state House of Assembly make identical laws on a subject matter over which both have concurrent legislative powers, the law made by the National Assembly will prevail over that made by the State House of Assembly.  In the case of Attorney General of Ogun State v. Attorney General of the Federation, the Supreme Court commented as follows per Fatai Williams CJN: “It is, of course, settled law, based on the doctrine of covering the field … that if Parliament enacts a law in respect of any matter in which both Parliament and a Regional Legislature are empowered to make laws, and a Regional legislature enacts an identical law on the same subject matter, the law made by Parliament shall prevail.  That made by the Regional legislature shall become irrelevant and therefore, impliedly repealed.”

It is now clear from the above provision that a public officer can now disclose to any person, including the press, information which he or she reasonably believes to show a mismanagement or gross waste of funds, fraud, and abuse of authority without the risk of facing criminal prosecution.  On this premise, I submit that NCAA officials hunting for the heads of those who revealed the information relating to the purchase of the armoured vehicles by the Nigerian Civil Aviation Authority for the Minister of Aviation have been disarmed by the provisions of Section 27 of the Freedom of Information Act.  But for the provisions of this section of the Act, this information would have been regarded as an official secret and would have forever been shrouded in secrecy.  Those who dared to reveal it would have been liable to prosecution.

Public officers who have information relating to fraud, abuse of authority, mismanagement, waste of public funds and similar corrupt practices are now free to divulge such information whenever such information come to their knowledge as they are protected by the provisions of Section 27 of the Freedom of Information Act.

 

—————————

 

Read this article in the Sun Newspapers

 

Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija