What could easily pass as one of the fiercest litmus test of the freedom of information Act of 2011 with specific reference to the commitment or otherwise of the President Jonathan's administration to respect that law is currently playing itself out between the fiscal Responsibility Commission and a pro-democracy group Human Rights Writers’ Association Of Nigeria (HURIWA).
The tango began with an exclusive interview granted an Abuja – based national newspaper (Daily Trust) by the chairman of the Fiscal Commission Dr. Yelwa in which he alleged large scale corrupt practices by a top government official but failed to name the indicted government official nor the agency of the federal government from which this unnamed government official allegedly steals millions of United States Dollars of Nigeria’s Public Fund.
Specifically, Dr. Aliyu Jibril Yelwa had told Daily Trust on August 6th 2013 thus; “There is one agency whose managing director was so shameless to tell us that part of the revenue that comes to that organization goes to a private person, and the said revenue is in dollars. The person collects it and even asks if that was all they gathered for the day, and the government is fully aware of that. Who am I to stop him? If you hear some terrible stories from these organizations, you will shed tears.”
Bombarded by members across the country to send a freedom of information request to the boss of Fiscal Responsibility Commission to compel him by law to name and shame the indicted public office holder, HURIWA through its National Coordinator Comrade Emmanuel Onwubiko had on August 12th 2013 dispatched a Freedom of Information request to the chairman of the Fiscal Commission.
In the said FOI request, HURIWA told the fiscal Responsibility Commission thus; “However Sir, we are not satisfied with the transparency of your comments that “there is one agency, whose managing director was so shameless to tell us that part of the revenue that comes to that agency/organization goes to a private person and the said revenue is in dollars. The person collects it and even asks if that was all they gathered for the day, and the government is fully aware of that. Who am I to stop him?”
“Sir, this allegation is a serious issue which should not be swept under the carpet. Sir, with profound humility, we demand that, the alleged agency and it’s managing director, together with the said private person be disclosed to all Nigerians by writing as the direct response to this freedom of information request to your good self and offices,” HURIWA stated.
HURIWA also demanded thus; “Sir, we demand this by virtue of Section 1 of the Freedom of Information Act (Laws of the Federation of Nigeria) 2011, which gives us the right to request any information in any form, in the custody or possession of any public official, agency or institution. In this instance you are in custody of this vital information but you stopped short of disclosing it for public consumption which we strongly think is offensive to the federal government’s resolve to wage zero-tolerant war against corruption.”
“Sir, we write this in good faith, hoping that you will grant our request, and failure to disclose this information within 7days, we shall have no option than to seek the necessary legal means to compel compliance to the provisions of the Freedom of Information Act as provided in Section 1(3) and Section 4.”
Obviously jolted by the request, the top management of the Fiscal Responsibility Commission met in its corporate office in Abuja and decided to refuse to disclose the name of the said allegedly corrupt top government official basing this refusal on the grounds that naming the individual and the government agency involved would jeopardize ongoing probe.
In an eight pages letter of response to HURIWA from the Fiscal Responsibility Commission dated August 19th 2013 and endorsed by the FOI officer Mr. Charles Abana, it failed to supply the names of the corrupt official and the agency even as the Fiscal Commission affirmed that under the enabling statute setting it up, it was not obliged to so disclose identity of persons under investigation for alleged anti-graft offences.
The Fiscal Commission told HURIWA thus; “I can confirm to you that the Fiscal Responsibility Commission will withhold the information you have requested because we consider that the exemptions under the following Sections of the F.O.I Act, 2011 apply to your requests. They are Sections 14(1)(e) and Section 12(1)(a),(i),(ii),(iii)(iv)(vi);(4).”
“We appreciate that this will be a considerable disappointment to you and would herein endeavour to explain to you why we reached the decision to refuse your requests as outlined above, ” the Fiscal Commission asserted.
The Fiscal Commission cited section 14(1) of the FOI Act of 2011 which provides thus “Subject to subsection (2), a public institution MUST deny an application for information that contains personal information and information exempted under this subsection includes…” and “information revealing the identity of persons who file complaints with or provide information to administrative, investigative, law enforcement or penal agencies on the commission of any crime.”
“Before proceeding further, it is imperative that we draw your attention to the provision of Section 2 of the Fiscal Responsibility Act, 2007 which is very relevant to the issue under consideration”, it stated.
The Fiscal Commission also based its refusal on the ground of some provisions under the enabling Act setting up the Fiscal Responsibility Commission thus; "Section 2(1) for the purpose of performing its functions under this Act, (of F.R.A) the Commission shall have power to: Compel any person or government institution to disclose information relating to public revenues and expenditure; and; cause an investigation into whether any person has violated any provisions of this Act".
In denying HURIWA's Freedom of Information request, the Fiscal Reponsibility Commission also stated that under its statute, it was not bound to so comply with the request to name the allegedly corrupt top government official so as not to undermine its investigation and further affirmed that; "If the Commission is satisfied that such a person has committed any punishable offence under this Act violated any provisions of this Act, the Commission shall forward a report of the investigation to the Attorney-General of the Federation for possible prosecution. (emphasis supplied)."
“Pursuant to the above stated power/responsibility of the Commission, it embarked on an on-going investigation of some of the Scheduled Corporations under its purview. The said on-going investigation is aimed at establishing if any person has committed a punishable offence (which is criminal in nature). At the conclusion of the said investigation, the law requires the Commission to forward a report of the investigation to the Attorney-General of the Federation for prosecution-which cannot be directly undertaken by the Commission”, it concluded.
Reacting to the refusal of the Fiscal Commission to disclose the identities of the allegedly corrupt official and the agency, HURIWA’S national coordinator Comrade Emmanuel Onwubiko said it was reprehensible that a commission created by statute to promote transparency and fiscal discipline is hiding under nebulous provisions of a lesser statute than the Nigerian Constitution to cover up evidence of alleged massive corrupt practices.
HURIWA stated thus; “We are still in a state of shock that this commission can so recklessly promote corruption by refusing to name and shame the corrupt government official. The 1999 constitution in section 15(5) provides that 'the state shall abolish all corrupt practices and abuse of power'. We then wonder how the fiscal Responsibility Commission in total breach of the constitution is masquerading as a respecter of nebulous provisions of the FISCAL Responsibility Act to conceal the identity of a corrupt government official. We smell a rat. We are studying their response and will decide our next line of action soon including the possibility of taking legal action to compel compliance or direct our Freedom of Information request to the office of the Honourable Federal Attorney General and minister of justice Mr. Mohammed Bello Adoke [SAN]”.