Thursday 1 August 2013

National Security and the Freedom of Information in Nigeria: The Quest for Open Governance*

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. The first point of possible tension is trying to agree on a definition of national security. What is national security? Over the years, national security has been defined in different ways and has undergone fundamental changes since the end of the 2nd world war when the usage of the term became popular and lately since the end of the cold war in the last 2 decades. Waltrand Morales (1993) has argued that national securities has been defined by defence specialists as first from the narrow perspective as the protection of a nation’s people and territories from physical attack; and second the more extensive concept of the protection of political power to the fundamental values and vitality of the state.  National security in Nigeria is still construed through the narrow sense of it being aimed at the protection of the nation state, its people and political powers. 

Looking at the security architecture of the nation beginning from the extinct National Security Organisation  which was created by virtue of decree no 27 of 1976 by the military administration of General Olusegun Obasanjo after the aborted  Dimka coup which claimed the life of former head of state General Murtala Mohammed. The National Security Organisation was given the mandate of coordinating internal security, foreign intelligence and counter intelligence activities. It was also charged with the detection and prevention of crime against the security of the state, protection of classified materials and carrying out any other security missions assigned by the president. The Babangida administration redesigned the National Security Organisation and separated same into three divisions namely State Security Services, National Intelligence Agency and the Defence Intelligence Agency – each of them with different responsibilities as stated in the National Securities Agencies Act.  For example Sub section (1) provides for the 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 concerning the security of Nigeria both within and outside Nigeria;
(c)    Such other responsibilities affecting defence intelligence of a military nature, both within and outside Nigeria, as the President or Chief of Defence Staff, as the case may be or may deem necessary;
Sub section (2) provides that the National Intelligence Agency shall be charged with the responsibility of (a) general maintenance of the security of Nigeria outside Nigeria, concerning matters that are not related to military issue; and
(b) such other responsibilities affecting national intelligence outside Nigeria as the National Defence Council or the President, as the case may be, may deem necessary;
Sub section (3) provides that the State Security Service shall be charged with responsibility for:
(a)   the prevention and detection within Nigeria of any crime against the internal security of Nigeria;
(b)   the protection and preservation of all non military classified matters concerning  the internal security of Nigeria; and
(c)    such other responsibilities affecting internal security within Nigeria as the National Assembly of the President, as the case maybe, may deem necessary

The National Defence Policy developed in June 2006 states that two factors made the publication of the document necessary – the first being the strategic realignment of the international security environment which followed the end of the Cold War while the second is Nigeria’s embrace of democratic governance after a long period of military rule.  The Policy further states that its content are taken from the country’s National Security Policy ‘which focuses on the preservation of the safety of Nigerians at home and abroad and the protection of the sovereignty of the country and the integrity of its assets’[1].

In a democratic regime the role of the police as one of the security sector actors cannot be swept under the carpet - therefore Section 4 of the Police Act provides for the 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 directly charged;
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[2]
Section 25 of the Nigeria Police Regulations provides for the establishment of a Police Mobile Force, which is to be maintained as a police striking force in the event of riots or other serious disturbances occurring within the federation[3].
Other actors within the security sector framework in a contemporary democratic society also include the courts, prisons (for the purpose of Nigeria), Nigeria Security and Civil Defence Corps (NSCDC) and civil society groups. These critical actors have a place in a defining, shaping and contributing to the security architecture of the country because the concept of national security has broadened since the end of the cold war beyond the narrow military conception to include human security which combines elements of defence, economic and basic human rights (Ball, Nicole & Fayemi, Kayode 2004)[4].
The FoIA provides a wide range of information that cannot be disclosed by public institutions 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 information that ‘may be injurious to the conduct of international affair and the defence of the Federal Republic of Nigeria’. The FoIA like other legal instruments / policy instruments referred to earlier does not give a concise definition of  what constitutes '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 for release of the otherwise restricted information. For example, Section 12 (1) (v) provides that information which could constitute an invasion of personal privacy should not be released;  Section 15 of the Act states that an information can be disclosed where the interest of the public would be better served by having such record being made available. The ‘public interest’ exemption provides opportunity for disclosure of otherwise restricted information.
The insecurity situation in the country has made Nigerians more interested in issues relating to security. For example, it would not be strange to have citizens discussing budget allocation to security and law enforcement agencies, rules of engagement of security operatives in the northern part of the country, operational strategy or procedure of JTF and other security agencies, equipments purchased,  watch with keen interest parliamentary debates  or discussions in respect of Baga (or any 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 the Afro barometer survey showed that 69% of Nigerians interviewed felt that the government has performed badly in reducing crime and 59% believed that government has not done enough in resolving violent crime between communities.  

Due to lack of access to information as a result of the classification of information rules according to Section 9 of the Official Secrets Act which states than 'any information or thing which under any system of security classification from time to time, in use or by any branch of the government, it not to be disclosed to the public and 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 otherwise dealt with, by a person acting on behalf of the Government of a State’.  This Act places restrictions in view of protecting different kinds of information based on the sensitivity of information, age and what the law and other regulatory stipulations. Nigeria being a former British colony still follows the British system of classification restricted, confidential, secret and top (or most) secret in the ascending order of sensitivity. A restricted material is considered capable of causing undesirable effects if made generally available to the public and can therefore only be released to particular individuals. For example the Annual Report of the Nigeria Police Force is marked 'restricted'.  Confidential materials are those materials that can cause damage or be prejudicial to national security if publicly available. Materials tagged ‘secret’ are considered to be sensitive records; those tagged ‘top secret’ are considered to be capable of causing exceptionally grave damage to national security if made public. 

In the course of work, there have been varying experiences with different security and law enforcement agencies. Sometime in 2009 = 2010, CLEEN Foundation was conducting an assessment of gender policies in security and law enforcement agencies 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 met with a brick wall with most of the Institutions because the information we were requesting for could not be released to us because 'it was a matter of national security'. One wonders why gender policies (if they exist) within an organisation should be a matter of gender policy?

Data and Statistics are also information that are guarded under the 'national security' purview. It is not too easy getting empirical data from some of the agencies to support some of the position that are made in public space. The world has moved away from anecdotal evidence, practitioners, citizenry, policy makers  should be able to make informed evidence based decision. However, what we find is that most times, as practitioners and citizens we rely on third party data / statistics or information. This in itself is not bad - if it is used as a means of comparison and possibly filling in gaps - just as the CLEEN Foundation's National Crime Victimization Survey Findings compared with the Data from the NPF Annual Report. The challenge now is that since 2009 its almost been impossible to get copies of the NPF Annual Report. This ought to be made easily available on the NPF website.  Still on the NPF Annual Report - one would find that as at 2009 (because that was the last copy I have seen), the data for total number of police personnel is a summed up aggregate. It is not disaggregated  as per gender or possibly age. Same with the recording of crime and victimization - not disaggregated as per gender or age. This makes it difficult to interrogate effectiveness of policies and possibly actions within the organisation which invariably affects service delivery to the public. 

Another topical area is in relation to manpower wastage. Do we know as a country how many lives have been lost as a result of the insurgency in the north or other perennial conflicts? How many security personnel, the age range, gender etc How many civilians, age range, gender etc such that we have an idea of what these conflicts and insecurities are costing us as a nation. And possibly commence an analysis of when we would start to feel the impact of the loss (that is, thinking beyond the billions of nairas that are voted now that is largely not being accounted for). 

What added value does the FoIA bring to National Security Discourse?
The FoIA provides public access to government held information. It strengthens transparency and accountability. It allows citizens to better understand the role of government and the decisions being made by the government on their behalf. This strengthens a symbiotic relationship of trust and confidence building. An informed citizenry can hold the government accountable for their policies and members of the public can make informed decisions based on reliable evidence based facts rather than information that stem from the rumour mill.  Political instability and violence in Nigeria (and Africa in general) are often outcomes of rumours and misinformation. 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 to the Vice President ....; similar situations took place in 2012 in relation to the health of the governors of Enugu, Cross Rivers States and the follow up tensions in the states. 

The Transparency International Bribe Payers Index (2011) ranks the arms, military and security sector in the top 10 most corrupt prone industries worldwide. The activities of the Arms, Military and Security sector are shrouded in secrecy under the guide of 'national security' which is extended at times to inappropriate cover up aspects of defence or security contracts. 

The culture of secrecy is a driver of a culture of impunity and corruption within a system. For example within the security sector institutions / agencies there are cases where monies spent are  far more than is reasonably justifiable compared to the 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 more proactive in the disclosure of information. They must be ready to be transparent and accountable to the general populace. 

Nigeria being a democratic society should lean towards being an open society. An informed and educated citizenry is important to engagement, transparency and accountability. The Press plays the role of watchdog of government on access to official information and dissemination to the public. Some of newspapers have been proscribed and journalists prosecuted for releasing information that has been considered sensitive or classified to the public. An informed citizenry with the support of the press have the capacity to hold the state accountable through the power of information gathering and dissemination.  Section 22 of the Constitution of the Federal Republic of Nigeria provides the agencies of mass media with the freedom to ‘uphold the responsibility, accountability of the government to the people’. At the regional level Article 9(1) of the African Charter on Human and Peoples 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 the traditional media.

The Security and Law Enforcement agencies have press units that are headed by senior officers, possibly trained and equipped. The responsibility of these Units are to serve as the nexus of engagement and interaction with the general public and with specialised sectors like CSOs, Academia etc by providing proactive information. The Defence Policy provides that a press corps shall be constituted by the Defence Headquarters during times of war or other similar national emergencies for orderly reporting of events that are related to the war or emergency. It states further that in ‘all situations national interest and the need for national security shall take precedence[5]’.

One should also state that the mass media need to be well informed about their responsibilities 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 enlightened and informed citizenry. Closely linked to this is social media and citizens journalism platform on which readers are major contributors to the reporting platform.
Concluding, embracing proactive disclosure of information in a world where there are different technologies and ways of getting information is key to maintaining and strengthening national security and not the other way around.

* Discussion Paper by Kemi Okenyodo, Executive Director, CLEEN Foundation at the National Conference 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, 30th and 31st July, 2013.


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