The Limitation of the Freedom of Information Act (2011)  in Nigeria: Edo State Govt v. Eholor (2024) as a Case Study

By Abdulrasaq Kamaldeen

In Nigeria, it’s a well-settled law that both the federal government and the state government have concurrent jurisdiction on some matters, i.e., both the federal and state governments have the power to enforce matters stated under Part ll (2nd Schedule) of the 1999 Constitution of the Federal Republic of Nigeria, which is the concurrent legislative list. Under Items 4 and 5 in Part 2 of the 2nd Schedule to the 1999 Constitution, which deals with

public records and archives, under which the federal and state governments have concurrent powers to make laws, provides thus: (4) “The National Assembly may make laws for the Federation or any part thereof with respect to the archives and public records of the Federation.” (5) “A House of Assembly may, subject to paragraph 4 hereof, make laws for that state or any part thereof concerning archives and public records of the government of the state.”

Thus, once a matter is mentioned on the concurrent legislative list, both the National Assembly and State House of Assembly can legislate on it. However, the power of the State House of Assembly is subject to that of the National Assembly, i.e., the law made by the State House of Assembly will be valid if it complies with the law made by the National Assembly. (Section 4 (5) of the 1999 Constitution of the Federal Republic of Nigeria.)

Therefore, if the National Assembly enacted a particular law that is under the concurrent legislative list but whose applicability is the only reference to the federal, such a law cannot be enforced by the state government except if the House of Assembly of a state enacts such a law into machinery. Controversial issues arise on the applicability of the provision of the Freedom Information Act (2011) in the case of Edo State Govt & Ors V. Eholor (2022) LPELR-58255(CA); whether the Freedom of Information Act, 2011 applies to states.

Section 29(1)(a-h) of the Freedom Information Act (2011) accentuates the concerned public institutions in Nigeria to submit a report to the Attorney General of the Federation on or before 1st February of each year. The provision specifically mentioned AGF but didn’t mention or reference the Attorney General of a state or the state Houses of Assembly in terms of oversight responsibility over state institutions or submission of annual reports.

The same Attorney General of the Federation must notify the chairman and some relevant committees in the Senate and House of Representatives of the existence of such reports, make them available, and submit them in softcopies and hardcopies to them (section 29 (4) of the same Act). Thus, the AG of a state has no fundamental right to claim or sue under the provision of the Freedom of Information Act (2011), except it has been set into machinery by the House of Assembly of a state. In the case of EDOSACA v. Osakue & Ors. (2018) LPELR-44157 (CA), the Court held:

“All said and done, a perusal of the Freedom of Information Act will not, in my humble view, project the intention that it is meant to cover the field. In other words, it is nowhere indicated or prescribed in the whole gamut of the Act that it shall apply both to the central and state governments.”

There are several provisions of this said Act that portray an undoubted thought that this Act is only applicable at the federal level. Section 29 (9) of the Act, which deals with the interpretation of the government, and Section 31 of the Act deal with the interpretation of the minister—it is obvious that the government in the said Act is a reference to the executive government of the president and the minister was used purposely to exclude the commissioner of a state.

In the case of Edo State Govt & Ors V. Eholor (supra), the court held that “it, therefore, behoves any state interested in adopting the provisions of the Act in its territory to set the necessary machinery in motion for the enactment of a similar law by the House of Assembly of the State. A few examples of Acts of the National Assembly that have been left to the discretion of any state that so desires to enact similar law include the Child Rights Act, Administration of Criminal Justice Act, and Administration of Justice Commission Act.”

There is a need to throw more light on the issue of covering the field (referring to the principle that once a National assembly has covered a particular area, a state house of assembly must not be contrary to it). It’s common among our seniors to learn that once the national assembly has made a law on a particular subject, the State House of Assembly cannot make any law on the said subject but must be bound by the said law made by the National Assembly. Is this true? No! If a matter legislated by the National Assembly is mentioned under a concurrent legislative list, a state house of assembly has reserved power to legislate on a similar matter, but it must not contradict the law enacted by the National Assembly. This is in tune with the provisions of Section 4(5) of the 1999 constitution of the Federal Republic of Nigeria.

In OSUN STATE INDEPENDENT ELECTORAL COMMISSION & ANOR. VS ACTION CONGRESS & ORS. (2010) LPELR 2818 (SC) OR (2010) 19 NWLR (PT 1226) 273. The Supreme Court per Tabai, JSC, provided a clear picture of the doctrine as follows: “By the doctrine of covering the field where the National Assembly has enacted a law on a particular subject, a State House of Assembly cannot enact a law on the same subject that is in conflict with or inconsistent with the provisions of the enactment of the National Assembly. And where there is such an inconsistency between the provisions of any law enacted by the National Assembly and that enacted by the House of Assembly of a State, the law enacted by the National Assembly shall prevail and the law enacted by the House of Assembly of a State shall, to the extent of the inconsistency, be null and void.

It was held in the case of Edo State Govt & Ors V. Eholor (supra), “My humble stance is that under the concurrent legislative list, both the National Assembly and the House of Assembly of a State have concurrent powers to legislate on matters listed within their respective purview; however, the power of the State House of Assembly is subject to that of the National Assembly; that is to say, the law made by the State House of Assembly will be valid to the extent of its inconsistency with the law made by the National Assembly.”

Conclusively, the Attorney General of a State is not bound under the Freedom of Information Act (2011), and he is not expected to submit an annual report of the activities of state institutions concerned to the National Assembly to the exclusion of the State House of Assembly. In the case of EDOSACA v. Osakue & Ors. (supra), the learned law Lord, Oseji, JCA (as he then was) (now of blessed memory) considered the above provisions, and particularly, section 29 of the Freedom of Information Act, 2011 before he concluded that the Freedom of Information Act (2011), though a commendable piece of legislation, does not have automatic application to the states, and that any state interested in adopting the provisions of the Act in its territory can set the machinery in motion for the enactment of a similar law by the House of Assembly of the State.

Abdulrasaq Kamaldeen is a 400-level law student at Usmanu Danfodiyo University Sokoto (UDUS). He is a legal writer and legal researcher.

He can be reached either through 09072621530 or kamaldeenabdulrasaq@gmail.com.

Source: BarristerNG