National Security and the Freedom of Information in Nigeria Asiwaju Kemi … www.dotifi.com

National Security and the Freedom of Information in Nigeria: The Quest for OpenGovernance

Introduction

The discussions around National Security and Access to Information (or Freedom of Information) usually meets with a bit of tension depending and this does not have to be so. Thefirst point of possible tension is trying to agree on a definition of national security. What isnational security? Over the years, national security

has been defined in different ways andhas undergone fundamental changes since the end of the 2nd world war when theusage of the term became popular and lately since the end of the cold war in thelast 2 decades. Waltrand Morales (1993) has argued that national securities hasbeen defined by defence specialists as first from the narrow perspective as theprotection of a nation’s people and territories from physical attack; and second themore extensive concept of the protection of political power to the fundamentalvalues and vitality of the state. National security in Nigeria is still construedthrough the narrow sense of it being aimed at the protection of the nation state, itspeople and political powers.Looking at the security architecture of the nation beginning from the extinctNational Security Organisation which was created by virtue of decree no 27 of 1976by the military administration of General Olusegun Obasanjo after the abortedDimka coup which claimed the life of former head of state General MurtalaMohammed. The National Security Organisation was given the mandate of coordinating internal security, foreign intelligence and counter intelligenceactivities. It was also charged with the detection and prevention of crime againstthe security of the state, protection of classified materials and carrying out anyother security missions assigned by the president. The Babangida administrationredesigned the National Security Organisation and separated same into threedivisions namely State Security Services, National Intelligence Agency and theDefence Intelligence Agency – each of them with different responsibilities as statedin the National Securities Agencies Act. For example Sub section (1) provides forthe duties of the Defence Intelligence Agency which are stated as follows:(a)Prevention and detection of crime of a military nature against the security of Nigeria;(b)The protection and preservation of all military classified matters concerningthe security of Nigeria both within and outside Nigeria;

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Discussion Paper by Kemi Okenyodo, Executive Director, CLEEN Foundation at the NationalConference on the Freedom of Information Act, 2011 organised by Right to Know (R2K). Theme: Nigeria’s Freedom of Information Act 2011, 2 Years After: Challenges and Prospects@ The New Chelsea Hotel, Plot 123 Cadastral Zone AO, Central Business District, Abuja, 30thand 31st July, 2013.

(c)Such other responsibilities affecting defence intelligence of a military nature,both within and outside Nigeria, as the President or Chief of Defence Staff, asthe case may be or may deem necessary;Sub section (2) provides that the National Intelligence Agency shall be charged withthe responsibility of (a) general maintenance of the security of Nigeria outsideNigeria, concerning matters that are not related to military issue; and(b) such other responsibilities affecting national intelligence outside Nigeria as theNational Defence Council or the President, as the case may be, may deemnecessary;Sub section (3) provides that the State Security Service shall be charged withresponsibility for:(a)the prevention and detection within Nigeria of any crime against the internalsecurity of Nigeria;(b)the protection and preservation of all non military classified mattersconcerning the internal security of Nigeria; and(c)such other responsibilities affecting internal security within Nigeria as theNational Assembly of the President, as the case maybe, may deem necessary The National Defence Policy developed in June 2006 states that two factors madethe publication of the document necessary – the first being the strategicrealignment of the international security environment which followed the end of theCold War while the second is Nigeria’s embrace of democratic governance after along period of military rule. The Policy further states that its content are taken fromthe country’s National Security Policy ‘which focuses on the preservation of thesafety of Nigerians at home and abroad and the protection of the sovereignty of thecountry and the integrity of its assets’

.In a democratic regime the role of the police as one of the security sector actorscannot be swept under the carpet – therefore Section 4 of the Police Act provides forthe general duties of the police as follows:i. The Police shall be employed for the prevention and detection of crimes;ii. The apprehension of offender;iii. Protection of life and property;iv. The due enforcement of all laws and regulations with which they are directlycharged;

The National Defence Policy of the Federal Republic of Nigeria page 2.

v. Shall perform such military duties within or outside Nigeria as may be required of them by or under the authority of this or any other Act

Section 25 of the Nigeria Police Regulations provides for the establishment of aPolice Mobile Force, which is to be maintained as a police striking force in the eventof riots or other serious disturbances occurring within the federation

.Other actors within the security sector framework in a contemporary democraticsociety also include the courts, prisons (for the purpose of Nigeria), Nigeria Securityand Civil Defence Corps (NSCDC) and civil society groups. These critical actors havea place in a defining, shaping and contributing to the security architecture of thecountry because the concept of national security has broadened since the end of the cold war beyond the narrow military conception to include human securitywhich combines elements of defence, economic and basic human rights (Ball, Nicole& Fayemi, Kayode 2004)

. The FoIA provides a wide range of information that cannot be disclosed by publicinstitutions and these ranges of exceptions are clearly stated in sections 11, 12, 14,15, 16, 17, 18 and 19. Section 11(1) of the FoIA restricts disclosure of informationthat ‘may be injurious to the conduct of international affair and the defence of theFederal Republic of Nigeria’. The FoIA like other legal instruments / policyinstruments referred to earlier does not give a concise definition of whatconstitutes ‘national security’ and therefore leaves the definition to discretion of whom is defining (depending on the person’s school of thoughts).It however provides the terms for consideration in granting the public access forrelease of the otherwise restricted information. For example, Section 12 (1) (v)provides that information which could constitute an invasion of personal privacyshould not be released; Section 15 of the Act states that an information can bedisclosed where

the interest of the public

would be better served by havingsuch record being made available

. The ‘public interest’ exemption providesopportunity for disclosure of otherwise restricted information. The insecurity situation in the country has made Nigerians more interested in issuesrelating to security. For example, it would not be strange to have citizens discussingbudget allocation to security and law enforcement agencies, rules of engagement of security operatives in the northern part of the country, operational strategy orprocedure of JTF and other security agencies, equipments purchased, watch withkeen interest parliamentary debates or discussions in respect of Baga (or any

Police Act, Cap 359 Laws of Federation of Nigeria 2004

Ibid

This was confirmed by an anonymous source in the office of the National Security Adviser.He stated that there are ongoing discussions of expanding the definition of national securityin Nigeria because of the presumed threats that are affecting the country.

similar situation) etc. This has become so topical that it has become focus of media,academic and NGO reports. For example findings from the Round 5 release of theAfro barometer survey showed that 69% of Nigerians interviewed felt that thegovernment has performed badly in reducing crime and 59% believed thatgovernment has not done enough in resolving violent crime between communities.Due to lack of access to information as a result of the classification of informationrules according to Section 9 of the Official Secrets Act which states than ‘anyinformation or thing which under any system of security classification from time totime, in use or by any branch of the government, it not to be disclosed to the publicand of which the disclosure to the public would be prejudicial to the security of Nigeria’. Subsection 2 further provides that classified matter remains classified‘notwithstanding that it is properly transmitted to, or obtained from, or otherwisedealt with, by a person acting on behalf of the Government of a State’. This Actplaces restrictions in view of protecting different kinds of information based on thesensitivity of information, age and what the law and other regulatory stipulations.Nigeria being a former British colony still follows the British system of classificationrestricted, confidential, secret and top (or most) secret in the ascending order of sensitivity. A restricted material is considered capable of causing undesirableeffects if made generally available to the public and can therefore only be releasedto particular individuals. For example the Annual Report of the Nigeria Police Forceis marked ‘restricted’. Confidential materials are those materials that can causedamage or be prejudicial to national security if publicly available. Materials tagged‘secret’ are considered to be sensitive records; those tagged ‘top secret’ areconsidered to be capable of causing exceptionally grave damage to nationalsecurity if made public.In the course of work, there have been varying experiences with different securityand law enforcement agencies. Sometime in 2009 = 2010, CLEEN Foundation wasconducting an assessment of gender policies in security and law enforcementagencies in Nigeria with a view to identifying good practices that could form part of a compendium of good practices in security sector institutions in Nigeria. We metwith a brick wall with most of the Institutions because the information we wererequesting for could not be released to us because ‘it was a matter of nationalsecurity’. One wonders why gender policies (if they exist) within an organisationshould be a matter of gender policy?Data and Statistics are also information that are guarded under the ‘nationalsecurity‘ purview. It is not too easy getting empirical data from some of theagencies to support some of the position that are made in public space. The worldhas moved away from anecdotal evidence, practitioners, citizenry, policy makersshould be able to make informed evidence based decision. However, what we find isthat most times, as practitioners and citizens we rely on third party data / statisticsor information. This in itself is not bad – if it is used as a means of comparison andpossibly filling in gaps – just as the CLEEN Foundation’s National Crime Victimization4

Survey Findings compared with the Data from the NPF Annual Report. The challengenow is that since 2009 its almost been impossible to get copies of the NPF AnnualReport. This ought to be made easily available on the NPF website. Still on the NPFAnnual Report – one would find that as at 2009 (because that was the last copy Ihave seen), the data for total number of police personnel is a summed upaggregate. It is not disaggregated as per gender or possibly age. Same with therecording of crime and victimization – not disaggregated as per gender or age. Thismakes it difficult to interrogate effectiveness of policies and possibly actions withinthe organisation which invariably affects service delivery to the public.Another topical area is in relation to manpower wastage. Do we know as a countryhow many lives have been lost as a result of the insurgency in the north or otherperennial conflicts? How many security personnel, the age range, gender etc Howmany civilians, age range, gender etc such that we have an idea of what theseconflicts and insecurities are costing us as a nation. And possibly commence ananalysis of when we would start to feel the impact of the loss (that is, thinkingbeyond the billions of nairas that are voted now that is largely not being accountedfor).

What added value does the FoIA bring to National Security Discourse?

The FoIA provides public access to government held information. It strengthenstransparency and accountability. It allows citizens to better understand the role of government and the decisions being made by the government on their behalf. Thisstrengthens a symbiotic relationship of trust and confidence building. An informedcitizenry can hold the government accountable for their policies and members of the public can make informed decisions based on reliable evidence based factsrather than information that stem from the rumour mill. Political instability andviolence in Nigeria (and Africa in general) are often outcomes of rumours andmisinformation. There are numerous examples of this situations that can be cited –in November 2009, there were tensions after the departure of the Late President Yaradua for medical treatment and there were no proper handing over process tothe Vice President ….; similar situations took place in 2012 in relation to the healthof the governors of Enugu, Cross Rivers States and the follow up tensions in thestates. The Transparency International Bribe Payers Index (2011) ranks the arms, militaryand security sector in the top 10 most corrupt prone industries worldwide. Theactivities of the Arms, Military and Security sector are shrouded in secrecy underthe guide of ‘national security’ which is extended at times to inappropriate cover upaspects of defence or security contracts. The culture of secrecy is a driver of a culture of impunity and corruption within asystem. For example within the security sector institutions / agencies there are5

cases where monies spent are far more than is reasonably justifiable compared tothe threats or insecurity that ought to be addressed.

What can be done? or What is the way forward?

Security and Law Enforcement Organisations should be encouraged to be moreproactive in the disclosure of information. They must be ready to be transparentand accountable to the general populace.Nigeria being a democratic society should lean towards being an open society. Aninformed and educated citizenry is important to engagement, transparency andaccountability. The Press plays the role of watchdog of government on access toofficial information and dissemination to the public. Some of newspapers have beenproscribed and journalists prosecuted for releasing information that has beenconsidered sensitive or classified to the public. An informed citizenry with thesupport of the press have the capacity to hold the state accountable through thepower of information gathering and dissemination. Section 22 of the Constitution of the Federal Republic of Nigeria provides the agencies of mass media with thefreedom to ‘uphold the responsibility, accountability of the government to thepeople’. At the regional level Article 9(1) of the African Charter on Human andPeoples Rights which is part of Nigeria’s domestic law under the African Charter. The media in Nigeria can be divided into the traditional and new media –information are easily accessible through the new media compared to thetraditional media. The Security and Law Enforcement agencies have press units that are headed bysenior officers, possibly trained and equipped. The responsibility of these Units areto serve as the nexus of engagement and interaction with the general public andwith specialised sectors like CSOs, Academia etc by providing proactive information. The Defence Policy provides that a press corps shall be constituted by the DefenceHeadquarters during times of war or other similar national emergencies for orderlyreporting of events that are related to the war or emergency. It states further thatin ‘all situations national interest and the need for national security shall takeprecedence

’.One should also state that the mass media need to be well informed about theirresponsibilities to make informed decision in a situation of diverse security threats –there is a need to ensure the balance and the ensure that we have an enlightenedand informed citizenry. Closely linked to this is social media and citizens journalismplatform on which readers are major contributors to the reporting platform.

Section 7 (15) National Defence Policy, 2006.

Concluding, embracing proactive disclosure of information in a world where thereare different technologies and ways of getting information is key to maintaining and

strengthening national security and not the other way around.

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