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Positive Obligation to Protect African Charter's Access to Information Norm Versus National Security Restrictions in Nigerian Law: Striking a Balance

Document Cited authorities 2 Cited in Related
Vincent
Pages177-202
DOI10.3366/ajicl.2019.0268
Author
Published date01 May 2019
Date01 May 2019
INTRODUCTION

The right of access to information is a fundamental right that merits recognition as a basic constitutional value in every democratic state. Constitutional protection of access to information has both juridical and social significance as vital pre-conditions for its enjoyment. First, constitutional provisions establish normative content, standards and scope of rights that other laws and official practices must comply with. Second, the formal character of a constitutional guarantee means that it can be directly enforced in court as a concrete protection without undue limitations to its enjoyment. Third, clear constitutional protection for the right including permissible restrictions thereto in terms of international instruments signals a progressive commitment to international law.

Many African states have either adopted constitutions or enacted laws giving effect to the right of access to information,1 but some of these are inoperable, deficient or not fully compatible with African and international standards.2 The African Charter on Human and Peoples’ Rights 1981 (African Charter)3 imposes a positive obligation on state parties to protect the right of access to information by adopting legislative and other measures to give effect to the right in domestic law.4 Any restriction to the right by a state party, even on national security grounds, must be prescribed by law, serve a legitimate interest and be necessary in a democratic society.5

Nigeria has ratified and incorporated the African Charter into its domestic law6 in terms of the Constitution of the Federal Republic of Nigeria 1999,7 which is binding on all persons and authorities.8 By virtue of the Constitution, Nigeria is a democratic state founded on the ideals of freedom, equality and justice.9 The Constitution upholds the right of political participation and establishes the framework for a democratic government.10 Section 39(1) of the 1999 Constitution guarantees ‘freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference’. But scholars have argued that section 39(1) does not confer a right of access to information.11 Undeniably, sections 39(3) and 45(1) of the Constitution qualify the right to information and validate laws that restrict access to state information to protect several interests as may be justifiable in a democratic society. Invariably, the state relies on sections 39(3) and 45(1) to affirm the constitutionality of statutes that excessively restrict access to information,12 the Official Secrets Act 1962 (OSA 1962)13 and the National Security Agencies Act 1986 (NSA Act 1986)14 being the two most disturbing. Though Nigeria enacted a Freedom of Information Act 2011 (FOIA 2011),15 both statutes confer broad powers on the executive branch to restrict access to state information pertaining to ‘national security’ without defining what ‘national security’ means. The NSA Act 1986 also voids the provisions of other laws that would have permitted access to public interest information held under it.16 Hence this article contends that the Nigerian State has not satisfactorily complied with its obligation under the African Charter to protect the right of access to information.

The introduction aside, the rest of the article is divided into four parts. Part II conceptualises the right of access to information and examines the scope of positive obligations of state parties to the African Charter to protect access to information including the nature of permissible national security restrictions thereto. Part III assesses Nigeria's constitutional framework on access to information. It finds its phrasing to be clumsy and non-compliant with the state's positive obligation in the Charter. Part IV subjects the NSA Act 1986 and the OSA 1962 to the three-part test of restrictions on the right of access to information, of which these laws fall short. Part V concludes that a clearly worded constitutional guarantee of the right to information and a rule-of-law-based definition of national security would lead to reasonably justifiable and balanced interplay between the right of access to information and national security in Nigerian law.

 CONCEPTUALISING THE RIGHT OF ACCESS TO INFORMATION

In this part I argue that the right of access to information is a fundamental value that accentuates the public interest in a democratic society.

The right of access to information is fundamental to the smooth functioning of a democracy. First, access to information empowers citizens to participate in democracy. The political power ascribed to the people in a democracy – independent assessment of candidates in an election and ability to monitor officials – are attainable only to the extent that citizens possess full knowledge of the running of their government.17 Moreover, democratic government exists to protect the public interest.18 To engage meaningfully with one's representatives in public debate and set the agenda for governance in accordance with the public interest thus requires that citizens be entitled as of right to official information.19 Second, democracy provides one of the philosophical foundations for human rights.20 This has greater impact for the right of access to information because states’ duties require them to establish processes that gather, utilise and keep public interest data. Enforceable access to government-held data can enhance the citizens’ ability to demand the protection of socio-economic rights.21 Third, public accountability will suffer if the press, civil society and watchdog organisations that play constitutional roles in enforcing government accountability are denied the legal teeth that access to information gives. This is because the right of access to information imposes a duty on the state to make information held by public institutions and private bodies performing public functions available to the people.22

Positive Obligations and African Standards on Right of Access to Information

The concept of positive obligation emanates from Article 1 of the Charter which provides thus:

The Member States of the Organization of African Unity, parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them.

The foregoing article establishes the fundamental human rights obligations that the Charter's state parties owe the persons under their jurisdiction. According to the African Commission on Human and Peoples’ Rights,23 all rights generate at least four levels of duties in terms of Article 1.24 These are ‘the duty to respect, protect, promote, and fulfil these rights’ which ‘entail a combination of negative and positive duties’.25 The duty to respect entails that states should not interfere with the enjoyment of rights.26 The duty to protect requires states to take appropriate measures such as legislation, provision of effective remedies and other positive steps to prevent interference with the enjoyment of rights.27 The duty to promote means that states should actually facilitate the enjoyment of rights by promoting tolerance, raising awareness and even building infrastructures.28 The obligation to fulfil implies an expectation from states to take concrete or positive steps to actualise rights through the direct provision of basic needs and social services.29 These are legally binding obligation on state-parties to the Charter similar to those emanating from comparative international treaties.30

Based on the concept of positive obligations and rights interrelatedness in the African Charter, in addition to the theory of implied rights, the Commission has shown that the right of access to information is a fundamental right.31 The Commission conceived the right as instrumental to human rights protection32 and as a component of the broader right to freedom of expression enshrined in international human rights instruments including Article 9 of the African Charter. Article 9 provides:

Every individual shall have the right to receive information.

Every individual shall have the right to express and disseminate his opinions within the law.

 Article 9(1) protects freedom of expression and access to information which are indispensable to a democracy and the protection of other rights. Article 9(2) admits of states’ jurisdiction to regulate access to information and freedom of expression ‘within the law’. Starting with SERAC,33 the Commission began to adopt a broad interpretive approach to the Charter. The Commission held that Articles 16 and 24 are closely related and both ‘recognise the importance of a clean and safe environment’ for human habitation, health and development.34 The Commission found Nigeria to be in violation of its positive obligations in terms of both articles. It said

Government compliance with the spirit of articles 16 and 24 of the African Charter must also include ordering or at least permitting independent scientific monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to those communities exposed to hazardous materials and activities and providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities.35

 It is explicit from the final recommendations in SERAC that the Commission recognised access to public interest information as a mechanism for realising the rights to an environment conducive to development, property, health, and family life rather than as a stand-alone right

The Commission later adopted a Declaration of Principles on Freedom of Expression in Africa (DoP)36 fashioned by its Special Rapporteur on Freedom of Expression and Access to Information in Africa (Special...

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