Report of the Second SANDS Round Table Meeting – July 12, 2017

Report of the Second SANDS Round Table Meeting – July 12, 2017

Report of the One-day Civil Society Roundtable towards: Increasing Access to Information in the Nigerian Security Sector

 

Acronyms

BPP: Bureau for Public Procurement

FoIA: Freedom of Information Act 011

MDA: Ministries, Departments and Agencies (the Nigerian state)

MoD: Ministry of Defence

MoJ: Ministry of Justice

OGP: Open Government Partnership

OGP NAP: Open Government Partnership National Action Plan (approved at a presidential level)

ONSA: Office National Security Advisor

OSA: Official Secrets Act

PPA: Public Procurement Act 2007

PPDC: Public Private Development Centre (NGO)

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Introduction

The Civil Society Legislative Advocacy Centre (CISLAC), in collaboration with the Transparency International Defence and Security Programme (TI-DS), and with support from the United Kingdom Conflict, Security and Stability Fund (UK CSSF), organised a civil society round table meeting on 12 July 2017, at Sandralia Hotel, Abuja, towards “Increasing Access to Information in the Nigerian Security Sector.”

The round table was attended by many of the primary civil society organizations tackling issues relating to conflict and instability, defence procurement and corruption, including CDD, PPDC, PRAWA, PRAXIS Centre and SERDEC; and representatives of the Federal Ministry of Justice, Bureau of Public Procurement, Open Government Partnership, and UK CSSF.

During the opening comments, Ms Eva Anderson presented Transparency International’s work through its global network of chapters and affiliates such as CISLAC, and TI-DS’s role in offering global best practice and research to this relationship. She outlined that an important reason for hosting the workshop was to see if a common advocacy approach can be identified between participants on applying the FoIA and matters of transparency to the defence sector, acknowledging that most participants are already actively involved in the area, and hoped that in collaboration, it might be possible to bring this focus on the defence and security sector. She moved on to mentioning the principles in the briefing to see if work can be aligned toward a common sense of advocacy.

This report, and the discussion from each session, is presented under Chatham House Rules.

Background

The issue of access to information is one of the primary issues identified in the Nigerian security sector. In May 2017, TI-DS and CISLAC released the Weaponising Transparency report, which explored risk areas for defence sector corruption in Nigeria and gave recommendations for addressing them. The report explored what the consequences of excessive secrecy have been in the defence and security sector procurement processes, making reference to the 15bn USD missing which was meant for the procurement of arms to fight the Boko Haram insurgency. It also considered the related aspects of regulating security votes, monitoring confidential procurement, extending public actions, and studying whistle-blower protection are missing in the defence sector.

Session I

Transparency International Defence & Security presentation covering best practice in access to information and its impact on corruption; defining national security and balancing public interest; an overview of how FoI procedure is applied in the UK & Canadian defence sectors; Official Secrets versus the FoIA; and preserving national security in internal whistle-blowing mechanisms.  

Key question for open session:

  • Where is the defence and security sector non-compliant with the FoIA?

The first session was moderated by Eva Anderson, TI-DSP. The presentation was broken into three parts namely:

Eva Anderson

  1. Access to information and its impact on corruption
  2. Examining how the UK and Canada respond to freedom of information request, and what categories of information is pro-actively available for release in these countries.
  3. Exploring solutions where such information is not pro-actively available, nor released publicly due to the excuse of national security, including how allowing for internal whistle blowing allows allegations to be explored.

In the first part of the presentation, Eva Anderson mentioned the following:

  • Freedom of Information Acts had been enacted in over 90 countries worldwide. Evidence shows that as freedom of information laws are implemented in countries, corruption becomes more controlled and tends to lower.
  • Lack of information can hinder intelligence sharing and also enforcement, noticing for example that stronger FoIA implementation in the US helped in high corruption conviction cases.
  • The Mexican government highlights the area and categories which receive the most FoI requests and makes that information proactively available. This reduces the amount of time in which the public gets access to information and the pressure on government to respond to requests.

Crucial factors that affect FoIA implementation include:

  • promotion of the law
  • resourcing agencies which are responsible for oversight
  • regulations
  • training and capacity building
  • insistence to respond to FoIA requests
  • guidelines
  • and appeal processes that follows lack of response to a FoIA

In the second part of the presentation, Eva Anderson gave an insight on how the UK government responds to FoIA requests, as well as proactively making information available for release. She examined how the UK Ministry of Defence responded to FoI law by publishing a data strategy to help achieve all its targets.

The categories of information that the UK government have ruled for proactive release are financial information relating to projected and actual income expenditure, tendering procurement and contract. Examples have included:

  • Contracts finder
  • MoD annual report and accounts
  • Special advisers: gifts and hospitality received
  • Senior staff salaries
  • Business plan
  • Non-consolidated performance awards

There is also a category for information that is available only on request, and would be responded to within 20 working days. She acknowledged that Nigeria has something similar on the issues of national security. Under the UK system, a request that has to do with national security issues would have to undergo a two-stage test before such information can be withheld from the public. The first stage is Potential of Injury, while the second stage is the Public Interest test.

However, if a FoIA request was not granted by the MoD after passing the aforementioned tests, they must provide clear reasons why such information cannot be released, and if the public is dissatisfied with their reasons, the public can appeal the case in the court. In appealing such cases, there are clear steps to follow, which include:

  1. Independent MoD internal review by a separate FoIA unit called the Information Right Compliance Team.
  2. Going externally to an Information Commissioner who has an independent external specialist body
  3. If the MoDrefuses to grant such requests within one month, the public can go to a Specialist Independent External Court.

Eva Anderson then ventured into internal whistle-blowing models, where she remarked that:

  • There is a category for “Classified Information”that is not available even on FoIA In this case, relying on whistle-blowing to expose wrong doing is unsatisfactory,  and a poor substitute for properly effective structures of internal and external accountability.
  • The law commission is presently reviewing the UK model of the whistle-blowing which was created in 1911 & 1920, to see the compliance with the present FoIA, which was in conjunction with media and the civil society.
  • There is also a danger in defence of over-classification, which waste resources, and limits information flow, which has affected the society. Formerly the UK system did not provide an effective way for whistle-blowers to raise concerns internally.
  • The Canadian whistle-blowing model is said to be more recent than that of the UK model. They have a statutory commissioner, which means an individual public servant can compelled to disclose information publicly. This model serves in public interest as it guarantees confidential national security information is not leaked publicly, and ensures any allegation of the prospective individual who wants to acquire information is investigated.

Discussion and responses

  • The Canadian model could work well in Nigeria but the UK model has too many elements, and would need an AG or presidential direction enabling an internal whistleblowing mechanism.
  • The military are likely to argue that depending upon circumstances even basic items can need to be secret; i.e. the recent procurement of uniforms, which was procured in secret using emergency procedures. The MoD said that Boko Haram have been copying military uniforms.
  • Government agencies and CSOs were not aware of any MoD internal policy on FoI compliance/response. Responses were previously sent from each service though the military now centralises its responses.
  • It was previously thought military had no rules on classification and just classified everything by default. Civil society now understand from ONSA that there are rules on classification, but those rules are also classified. The head of classification in ONSA has also told them that different security agencies apply the rules differently.
  • Several government agencies feel that the courts should be used more for FoI appeals to determine and sanction non-compliance. The MoD needs to put out publicly available guidance so citizens know what they can access and send an FoI request for non-public guidance is useless.
  • There is a nominated MoD FoI desk officer with his name and details on the OGP portal, but they are likely to have limited delegated power to respond to FoI requests will still go all the way to the top.
  • Adopting a Canadian-style whistle-blowing option would require a legal backing for the procedures in Nigeria to be changed.
  • Whistle-blowing is a policy in Nigeria, not a law. Therefore the protection of a whistle-blower is not guaranteed.
  • The FoIA is not as effective as it is supposed to be.
  • There are institutions that are set to preside over other institutions; but they are not independent. There is a hierarchy in obtaining information. There are challenges faced in this country, therefore the focus should be on how to deal with the challenges and what reform process it can trigger.
  • Where does the individual who assesses the information preside?

In response, Eva mentioned that for the stage one, the person who assesses the information is someone who is dedicated to MoD FoIA issues, but in step two and three, such individuals are not within the MoD.

  • Who is expected to give a response of the analysis?

In the first stage, MoD FoIA unit responds; second stage: internal review responds; third stage: the information commissioner; fourth stage: special independent external court.

  • Is there a special quarter for a feedback mechanism?

There is a dedicated government website, which has subsections, where all the government information is provided and can be easily accessed.

  • Where do you think the MoDis not complying with the FoIA? Is there a policy by the MoD on how they respond to FoI?

– There are classification rules that are very peculiar with the NSA. The rules for classification right now are also confidential at the MoD.

– The defence sector is not responding to requests, even though other public institutions are complying and the FoIA states that an application for information shall not be denied where the public interest in disclosing the information outweighs whatever injury that disclosure would cause.

– The FoIA is potentially inferior to the NSA Act, but this is a moot point.

– There may be a need for the harmonization of laws for the FoIA to be effective.

  • MDAs also try to classify certain information as classified. There is a need to redefine what is confidential.
  • The NASS are also depriving access to information not only the MoD.
  • We need to have legislative intervention. Ordinary Nigerians need to have an explanation on their funds uses.

Session II

MoDerator and Opening Comments: Juliet Ibekaku, Presidential Legal Advisor Open Government Partnership Secretariat with expert input from the Ministry of Justice Freedom of Information Unit

Key questions for open session:

  • What are the main reasons for defence sector non-compliance and the main obstacles to achieving greater transparency?
  • At the 2016 London Anti-Corruption Summit President Buhari committed to an Open Government Partnership (OGP) National Action Plan led by the OGP Secretariat: is it possible to leverage those reforms goals to push for corresponding change in the defence sector, and what appetite is there in the OGP Secretariat to do this?
  • How can the MoD and OGP stakeholders be made aware of how OGP National Action Plan Commitments apply to defence? What powers does the OGP Secretariat have to attain MoD compliance?
  • In what problem areas could civil society offer most support to further OGP’s FoIA goals and to support MoD compliance?

Juliet Ibekaku

Juliet Ibekaku called on Benjamin Okolo of Federal Ministry of Justice to respond to the legal issues in this session, thereby merging sessions two and three together.

In his presentation, Mr Okolo gave an insight of the FoIA 2011 where he mentioned the following;

  • According to Section 1, FoIA establishes the right of any person’s access or request for information on whether or not contained in any written form, which is in custody or possession of any public official, agency, or institution.
  • The law speaks about the proactive disclosure of information of all government institutions, including the MoD, according to Section 2(3) of the law.
  • The FoIA also provides exemptions of information as stated in the section 11 – 19 (excluding 13), however, the issue of public interest can defeat the provisions of exemption.
  • Section 7(2) of the NSA Act of 1986, which is one of the four existing Laws that was brought into the Constitution of 1999, renders the FoIA void in areas that are inconsistent with the provisions of the NSA Act. Hence, before the MoD is brought in, there has to be a synergy with the Constitution and FoIA in order to prevent the Act from being void.
  • Another law that also renders the FoIA handicapped is section 15(2) of the Public Procurement Act (PPA), which states that provisions of the PPA 2007 shall not apply to procurement of goods, works, and services involving National Defence or National Security unless the President’s express approval has been sought or obtained.
  • References were also made to S14 of PPA, which fulfils the FoIAand states that “all unclassified procurement records shall be open to inspection by the public at the cost of copying and codifying the document plus administrative charge as may be prescribed from time to time by the Bureau.”
  • Section 1 of the NSA Act 1986 – S.315 CFRN, makes provision for the establishment of Defence Intelligence Agency (DIA), National Intelligence Agency (NIA), and State Security Service (now Department of State Security – DSS). The respective responsibility of the agencies according to the NSA Act states that all provisions in the Act shall have effect notwithstanding the provisions of any other law to the contrary (S2(4) NSA Act.

Concluding his presentation, he recommended the harmonization of the NSA Act, PPA and FoIA in order for the implementation of FoIA to be actualized, and for the President to use his powers in line with S15(2) of the PPA to release some of the classified information on the MoD.

In furtherance to the on-going discussion, Juliet Ibekaku began her presentation with key focus on the roles of the Open Governance Partnership (OGP) secretariat. High points from her presentation are as follows:

  • Lack of transparency is one of the major causes of non-compliance to the FoIA.
  • The Bureau of Public Procurement (BPP) have made efforts to tackle the opaque way of doing things, which is why they set up the open contracting system, taking into account the OGP commitments in the four thematic areas of (1) access to information, (2) anti-corruption, (3) fiscal transparency, and (4) citizen engagement.
  • The OGP secretariat have studied the FoIA in-depth on what needs to be done that will attend to the needs of the Nigerian people, as well as exploring ways of engaging citizens in budgeting processes. This would include increased engagement with the citizens on budgeting/contracting process.
  • In terms of how to leverage the goals, the open contracting system is also giving a platform to engage with citizens.
  • BPP has taken very significant strides in ensuring procurement processes are made public whereby Nigerians can access and monitor various projects that has been paid for, and whether they have been executed, through the use of technology.
  • There is a need to establish a link between the accountant general’s office, procurement process, budget office and the Finance office in order to achieve the purpose of the open contracting system.
  • Efforts have been made to create awareness on OGP. One of these is for every department in the various MDAs to adopt open governance in all their procurement processes. There is need for CSOs to carry out sensitization campaigns for citizens within and outside Abuja to understand the concept of OGP.
  • Working with the defence sector was not made a priority in their action plan, however, it does not mean that they would not be working with them.
  • Harmonization of the aforementioned laws have to be in place in order to gain access to some sets of information, and the possibility of working with the MoD in developing policies and guidance with the president’s approval.

Discussion and responses

  • Citizens have a FoI right but the defence are not responding to FoI. The FoI law clearly highlights need for proactive disclosure – the military are also not doing this and fall behind the national security blanket to shield from transparency. But FoI law is clear – public interest can defeat national security argument. Here we seem to hit a wall: the military cite the OSA, that it has elements on par with the 1999 Constitution, which cannot be defeated by FoI. The military say the OSA & Constitution are superior to the FoI law and cannot be defeated, therefore they cannot implement FoI in defence. The PPA also presents issues: national security can seem to defeat application of the PPA unless the President expressly approves otherwise. Defence has therefore defaulted to nondisclosure wholesale in their procurement. This needs to be amended so that classified procurement, all defence procurement are open to some form of oversight and inspection.
  • The NSA has nominated three (3) agencies (including National Intelligence agency and the Defence intelligence Agency) as responsible for classifying and holding classified data. OGP NAP cannot achieve reforms until we unlock this issue. MoJ believes the OSA needs to be amended before the military will be able to implement FoI.
  • The military has the discretion to use national security provisions or not, but are not using a discretionary approach. The government is currently signing a multi-million dollar contract with the US Department of Defence: how is it that the Ministry of Justice can get more information from the USA on this procurement than from the agency it is meant to be overseeing?
  • Response: The BPP raised that there are efforts to amend this issue in the PPA. The President has approved an amendment to the act so all defence and national security procurement do fall within the PPA and BPP oversight unless the president expressly authorises otherwise. This counterbalances these unintended effects. 
  • Response: The BPP also noted they are now seeing even ordinary non-military MDAs using national security as a reason to keep procurement secret and away from BPP oversight.
  • There is a lot of room to manoeuvre within the current laws. What can be done? But the president wants the status quo changed, meaning less secrecy and no corruption, and he has committed to the OGP NAP at the AC Summit in London. Four thematic reform areas flow from that, including to increase transparency and citizen engagement. This includes defence budgeting and procurement, and increasing citizens’ trust in these. BPP’s new e-contracting platform is part of this.
  • The OGP office is working closely with Nigeria Governors’ Forum at the state level.
  • The issues with the previous NSA were a long time ago when there was a different mentality, a different attitude in society and its expectations of the state and the military. Today is a different society and there is a need to move military along; we need to know more what are UK and international best practices on FoI in defence so we can develop our policies and procedures. Agencies must be able to ask questions about what is allocated in the defence budget and what is procured so we don’t have situation where three (3) helicopters are procured that don’t work. This is what the President wants and has ordered. Defence, OGP and civil society all need to work together to talk to the military about how we can achieve this. All we are asking is quite simple – for defence to apply the FoI and PPA laws. The President will be very supportive and he is open to ideas to support this goal.
  • A  BPP representative noted that since the ‘presidentially-appointed’ audit probes, the MoD had been asking a lot of questions about the PPA to understand how to apply it, so they do not break the law. They noted that the Chief of Defence and other senior defence leaders had met with the BPP to understand what is and is not possible in procurement law.  The representative also noted the BPP-MoD established national security definition committee and that they were invited to speak at an event in Kaduna. The BPP analysed government to government purchases with the MoD but don’t look at government to government arms purchases much.
  • The BPP and MoD have another meeting coming up where they will discuss monitoring defence. Most of the time defence use restricted bidding, restricted competition procedures which the BPP can  monitor and MoD. However, the BPP have had to check equipment and defence has not given it access to check.

The BPP representative invited TI-DS to view the new e-procurement platform when it is ready and explore how this could be used for defence.

  • Inviting civil society to some of these engagements with the MoD would add a different view. The BPP and MoD are all government employees, and with external pressure they will change.
  • Defence are open to change “for the moment,” so we need to take advantage of the moment. Our discussion here shows we need policies we can jointly propose on how we can make things more transparent, to give MoD these ideas.
  • One government representative noted they had never seen an NGO apart from Transparency International Defence & Security saying “this is what we can offer to this problem.” CSOs need to tell government agencies what they can offer to support the OGP and MoD compliance with the FoIA.
  • A working document should be created. Advocacy should be provided for the working document.
  • The risk of corruption in undisclosed deals is very high. It has been observed that several organisations do not like to expose contracts. Not knowing what is being procured and the amount undermines the trust of the public.
  • After the constitution, the FoIA is the strongest law. You violate it; you go to jail. It is very rich and can be utilised. One of the main objectives of the FoIA is the disclosure of processes so that people can easily engage with them.
  • It is important to pro-actively disclose information – “when people know what you are doing they will not bother criticizing you.” Payment should be tied to records so there will not be payments made without any record.
  • Citizens’ engagement is key in ensuring implementation. A lot of awareness is being created through the OGP, including ways of improving communication with the public. Harmonization of information from various agencies is a way forward.

Session III

MoDerator and Opening Comments: PPDC and the Ministry of Justice FoI Advisor

Key questions for open session:

  • What types of information – such as security votes, procurement tenders, beneficial ownership data, salaries, staff numbers, infrastructure, recurrent & capital expenditure, officer training and budgets – are vital for the effective functioning of oversight bodies such as the BPP, OAG, National Assembly, Senate Committees MOF, Auditor General and Budget Monitoring Units? 
  • What information categories are required for effective civil society oversight of the security sector, and in what order of priority.
  • If classified, such as Security Votes, after what period can these be released or reviewed for release? What are recommended maximum classification period and timelines for revision of information?

Discussion and responses

  • Nigeria needs consistency with international FoI application of other countries’ laws. In the case of the 2014 Levy contract, Nigerian journalists got a lobbying contract via USA FoI that was denied under Nigerian FoI as national security – it turned out it was a travel expenses account for civil servants.

This undermines the national security argument. If information is disclosed abroad it is weak to say it cannot be disclosed in Nigeria. This was similarly the case with the ONSA procuring cameras for USD 60 million through Paradigm Initiative. Details were not granted under FoI in Nigeria, but the Israeli company disclosed on their website a corresponding contract for half the value – no cameras and USD 30 million missing? The Accountant General looked at the accounts and noted they had released 98% of the budget money, so where did the money go? There may be a good reason but this undermines public trust.

What is an acceptable amount of confidentiality in defence and security? Certainly not 100%, as the Dasukigate scandal has shown.

  • An official noted that MoD classification rules are not publicly available, and the need to set up a committee or working group to review existing guidelines and where they can be improved so the military can be compliant with the flaw. There is the need for collaboration, and for rules, procedures and public codes so the public can see what we would all like our MoD to follow for all defence and national security. The speaker recommended:
    • Setting up an OGP working group to make these documents
    • Asking MoD to compare the rest of government’s work to civil society’s, noting that there is now a window through Dasukigate and the disposition of the president and the vice president.

Session IV

MoDerator and Opening Comments: Seember Nyager, CEO Public Private Development Centre

Expert input from: Mr Aliyu Aliyu, Bureau of Public Procurement

Key questions for open session:

  • How could the BPP monitor confidential and non-confidential defence tendering?
  • How could a system and rules for classifying information further defence sector compliance with the FoIA and public access?
  • How should the public interest and “potential for injury to National Security” tests be applied?
  • Should FoIA non-disclosure be appealed to the courts?
  • What are recommended categories and levels of information?
  • Group Brainstorming:
    1. What information should be proactively available
    2. What information should be available on request

Themes of the session:

  • PPDC stated that during the course of their engagements with the defence sector, they realized that there were rules of classifying information within the defence sector.
  • Nigeria does not have a system of classifying information. Citizens have to understand the concept of classification rules and develop procedures to put in place. Any project tied to the law would have to be within the stated procedures.
  • PPDC has developed a set of guidelines including the categories and levels of information, and Ms Nyager said information would be shared to the participants on that note.
  • There is reliance on the defence and security sector to self-regulate, who are not disclosing enough information regarding their procurement processes. In 2014, PPDC requested through News Agency of Nigeria (NAN) for a copy of a defence sector contract, but the MoD responded to NAN that the information they were trying to access was classified as restricted by the NSA. However, it was later discovered that it was a PR contract that ran into millions of dollars and would not in any way pose a threat to national security if disclosed. This kind of situation could result in lack of trust in the system by the citizens.
  • Non-disclosure of FoI requests could be appealed to the courts, as the Act empowers the judge to request for documents whether classified or not. However, it is left to the judge’s discretion to determine the release or withholding of such information.
  • PPDC increasingly sees a more positive response from the agencies that they send FoI requests to, including defence agencies, as they get used to applying the law and working constructively with civil society. They now receive documents from most agencies when they ask because MDAs know they will appeal through the courts if they are withheld.
  • PPDC encouraged all parties to send more FoIs to defence, and to be prepared to appeal and work with them and the judiciary if they don’t comply. For example, PPDC raised a case with Ministry of Defence, but this was struck out because of a procedural issue. Although they could have pursued this further in court, they had started a dialogue with MoD to obtain this information.

Discussion and responses

  • Every classification rule should be harmonized, especially that of the local content, and make it part of the presidential orders.
  • CSOs are advised to send denials of FoIA requests of MoD to the Attorney General of the Federation, who would take steps to further get responses on those
  • What is “potential for injury to National Security”? It would be good to see some judicial interpretation on this. It would also be good for the Attorney General to give some more detailed guidance breaking down this. The law is okay as it stands but AG guidelines would help guide interpretation.
  • A judge will just strike out an appeal surely?
    • Response: No – it is a public interest test, it can go to court and the case will be determined on the facts. The judges cannot say ‘this is a defence matter, please go back’.
  • Changes do not always need to be make at the legislative level – there is case law/judicial interpretation, there is also executive orders, regulations are to guide implementation, it is an extension of that law, so yes, testing in court is very important.
  • OGP citizen engagement – representative from MoJ: judge, whether classified or not, can under s22-23, can review the documents and decide if nation security is an argument preventing release or not.
  • Do we not need to know what rules the MoD is using to determine national security/classification matters? So that we can debate and say, no, this is not national security.
    • Response: This a consideration for BPP when working with the MoD. They have previously formed a MoD-BPP working group to review national security definitions in procurement. It would be interesting to see if Nigeria defence uses the public interest and national security test in the same way the UK does and compare practices.
    • Response: PPDC have developed some draft recommendations to guide classified and defence procurement and FoI that they can share with participants.
  • On the first question: we first need to know more about what their internal rules are.
  • The PPA is not the last line of disclosure. The FoIAct is the real disclosure law. We can make a test part of the process, and weigh it in the same way the UK does and other countries weigh the same public interest and injury criteria that the UK FoI
  • A MoJ representative advised NGOs to alert them, and send the denial to them, so they can interface and engage with agencies not complying. They noted the AG has done this recently for other agencies.
  • Public expenditure is one category for proactive release; operational strength is not.
  • There should be 10-year maximum limit for confidentiality. A general told us they burn records – this is illegal! The law says they must be kept. Accounting records cannot be classified for more than ten years.

Closing Remarks

The round table was closed by Salaudeen Hashim, who thanked participants for their substantial contributions, and hoped that their recommendations would make part of subsequent activities on this project.

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