Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The Socio-Economic Rights and Accountability Project, a Nigerian NGO, requested the government to disclose information concerning the recovered stolen public funds since Nigeria’s return to democratic rule in 1999. The government, however, rejected the request on the ground that the governing Freedom of Information Act does not retroactively apply to those records that occurred prior to the law’s enactment in 2011.
The Federal High Court of Nigeria found that the government’s refusal was contrary to fundamental principles of transparency and accountability and in violation of Articles 9, 21, and 22 of the African Charter on Human and Peoples’ Rights. In its landmark decision, the Court held that information pertaining to the government expenditure of stolen public funds since 1999 fell squarely within the country’s Freedom of Information Act and therefore, the government was required to disclose and widely publish that information.
Columbia Global Freedom of Expression could not identify the official legal and government records on the case and that the information contained in this report was derived from secondary sources. It must be noted that media outlets may not provide complete information about this case. Additional information regarding this legal matter will be updated as an official source becomes available.
The Socio-Economic Rights and Accountability Project (SERAP) was created in 2004 to achieve a greater transparency and accountability in Nigeria. In 2011, the organization requested several documents from the Nigerian government pursuant to section 1(1) of the Freedom of Information Act (FOI), which provides the right “to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution howsoever described.” The documents sought included information dating back to 1999 on the total amount of stolen public assets recovered by the government; the total amount of government spending from such funds; and the details of the projects on which the recovered funds were spent.
The government rejected the request, reasoning that the organization could not demand the disclosure of public information prior to the enactment of FOI in 2011. SERAP subsequently brought a lawsuit in the Federal High Court of Nigeria to compel the government.
In response, the government filed two separate preliminary objections against the lawsuit, contending that the organization lacked standing to sue and that the lawsuit was statutorily barred. It also reiterated its stance that FOI does not retroactively apply to events that occurred prior to its enactment.
Justice M.B. Idris delivered the opinion of the Federal High Court in Lagos.
The main issues for the Court were whether the information sought by SERAP was subject to disclosure pursuant to FOI and if so, whether the law could retroactively be applied to spending records of different governments prior to 2011 when FOI was enacted.
SERAP first argued that under Section 1(1) of FOI, “it is entitled as of right to request for or gain access to information which is in the custody or possession of any public official, agency or institution.” It also stated that the records of the government expenditure of recovered stolen funds since the return of civilian rule in 1999 are clearly subject to disclosure pursuant to Section 2(3)(c)(v) of FOI, which obligates public institutions to publish “information relating to the receipt or expenditure of public or other funds of the institution.” Under Section 2(4), the institutions “shall ensure that information referred to in this section is widely disseminated and made readily available to members of the public through various means, including print, electronic and online sources, and at the offices of such public institutions.” The organization further emphasized that the government expenditure at issue was not exempt from disclosure and in fact, it directly concerned “national interest, public concern, social justice, good governance, transparency and accountability.”
The Federal High Court denied the government’s preliminary objections. After examining the nature of information sought by SERAP, it ordered the current government of President Muhammadu Buhari to “ensure that his government, and the governments of former President Olusegun Obasanjo, former President Umaru Musa Yar’Adua, and former President Goodluck Jonathan account fully for all recovered loot.”
The Court held that the failure to disclose and widely publish the detailed information about the spending of recovered stolen public funds amounts to “a breach of the fundamental principles of transparency and accountability and violates Articles 9, 21 and 22 of the African Charter on Human and Peoples’ Rights.” It specifically required the government to disclose:
“(a) Detailed information on the total amount of recovered stolen public assets that have so far been recovered by Nigeria;
(b) The amount that has been spent from the recovered stolen public assets and the objects of such spending;
(c) Details of projects on which recovered stolen public assets were spent.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case expands expression as it protects the right to access public information. The decision has been hailed as a breakthrough in Nigeria as it promotes more transparency and accountability.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The precedent of the case is yet to be determined as the decision of the Federal High Court can be appealed.
Let us know if you notice errors or if the case analysis needs revision.