ON THE REFUSAL OF NNPC TO RELEASE INFORMATION PURSUANT TO FOIA APPLICATION FOR SAME BY MR. FEMI FALANA, SAN

 

In a 1st March 2018 letter to Mr. Femi Falana, SAN, the NNPC, in perhaps an unprecedented brazen manner, bluntly refused to release certain critical information sought by Mr. Femi Falana, SAN from the Corporation. The simple but highly insensitive reason, which smacks of a high level of impunity is that the Freedom of Information Act (FOIA) excludes the NNPC from being compellable to release information sought by members of the putblic.

The specific pieces of information sought by Mr. Femi Falana, SAN, are in five (5) categories. They are:

The value of the revenue realized from the sale of the daily allocation of 445,000 barrels of crude oil to NNPC from 1st June 2015 to 31st December 2017.

The amount utilized as subsidy and the amount remitted to the Federation Account from the revenue realized from the sale of the daily allocation of 445,000 barrels of crude oil to NNPC from 1st June 2015 to 31st December 2017.

The quantity of crude oil refined locally from 1st June 2015 to 31st December 2017.

The amount spent on Turn Around Maintenance (TAM) of the local refineries from 1st  June 2015 to 31st December 2017, and

The quantity of crude oil refined daily at Abidjan, Cote D’ Voire, by the NNPC from 1st  June 2015 to 31st December 2017.

The NNPC, in its said letter signed by Mrs. Sarah Ndukwu, to Mr. Femi Falana, SAN, gave four (4) reasons or excuses for its refusal to release the above information sought by Mr. Falana. The reasons/excuses given are, that:

The Freedom of Information Act (FOIA) is not applicable to, or binding on NNPC because NNPC is not a “public institution” as defined under section 31 of the FOIA.

The Courts have judicially held that the FOIA is not applicable to, or binding on NNPC because NNPC is not a “public institution” as defined under section 31 of the FOIA.

Assuming, without conceding that the FOIA is applicable to NNPC, Section 15(1)(a)-(c) of the FOIA excludes the categories of information sought from being disclosed for the sake of protecting trade secrets, commercial and contractual obligations/agreements to third parties, in the absence of a prior consent to disclose such information, and

Information sought would not serve any public interest, in terms of public health, public safety or protection of the environment as to bring the information sought within the items exempted from disclosure under section 15(4) of the FOIA.

The challenge then is to examine the veracity of the four (4) excuses, which the NNPC gave to refuse releasing the information sought.

 The first reason/excuse is that the FOIA is not applicable to, or binding on NNPC because NNPC is not a “public institution” as defined under section 31 of the FOIA.

Within the context of the narrow definition given to ‘public institution’ in the FOIA, it may be argued, as the NNPC has done, that NNPC may not be taken as a public institution because NNPC cannot be described as legislative, executive, judicial, administrative or an advisory body to the Federal Government.

However, within the context of the NNPC Act, which gave birth to the NNPC and within the context of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the fons et origo, I am of the strong opinion that the NNPC is a public institution.

The NNPC Act statutorily created the NNPC as a public corporation, a public institution. The online Black’s Law Dictionary, citing several judicial authorities, defines a public corporation as a statutory body which belongs to all the citizens and every member of the State as opposed to a private company which belongs to a few individuals.  Another definition offered by the online Black’s Law Dictionary says a public corporation is a body created by the State, country  or nation-state for either political, commercial or social purposes to serve as an agency for the administration of civil government, within a particular sphere or subdivision of the economy or society. Again, for this definition, the Black’s Law Dictionary relies on a plethora of judicial authorities. Thus, within the context of the NNPC Act, which gave birth to the NNPC and legal definitions of public corporation in the Black’s Law Dictionary, the NNPC is a public institution.

Much more importantly, within the context of the Constitution, the NNPC is a public institution. In law, the term, ‘public officer’ refers to both an individual office holder and a public agency. Under the 5th Schedule to the Constitution, Part II, Paragraph 14, public officers include chairman and members of governing bodies as well as staff of statutory corporations and of companies in which the Federal or State Government has controlling interests.

The NNPC is a body created by a statute, the NNPC Act, and the Federal Government not only owns it wholly, it is funded and controlled by the Federal Government. Under Section 1(3) of the Constitution, if any Statute is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall, to the extent of its inconsistency, be void. To this extent, in so far as the Constitution recognises that any corporation in which the Federal Government has controlling interest is a public institution, then, to that extent, I argue that Section 31(3) of the FOIA, which defines a public institution in ways inconsistent with constitutional provisions, is automatically deemed to be unconstitutional and therefore null and void in that respect.

By Section 85(3),(4) & (5) of the Constitution, the NNPC is a public institution over which the Auditor General is empowered to provide a list of auditors from which the NNPC shall appoint qualified auditors to audit the accounts of the NNPPC, provide guidelines on the levels of fees to be paid to the auditors, comment on the annual accounts of the NNPC, conduct periodic checks on the NNPC accounts and place reports before each House of the National Assembly which shall, in turn, cause the Committees on public accounts to consider such reports.

Moreover, from the point of view of Section 88(1)(i) & (ii) of the Constitution, the NNPC is a public institution to the extent that the National Assembly is vested with the power to conduct investigations into the affairs of the NNPC as a body executing or administering laws (e,g. the NNPC Act) enacted by the National Assembly and NNPC being a body disbursing or administering moneys (e.g. subsidy) appropriated or to be appropriated by the National Assembly.

From the above references to statutory and constitutional authorities, I submit that the NNPC is a public institution, contrary to the deliberate misleading misconception by the NNPC.

The second excuse for refusing to provide information sought by Mr. Femi Falana, SAN, is that the Courts have judicially held that the FOIA is not applicable or binding on NNPC because NNPC is not a ‘public institution’ as defined under section 31 of the FOIA.

The NNPC, in its letter to Mr. Femi Falana,, SAN, cites two cases (Messrs Public & Private Development Centre Ltd in Suit Nos. FHC/ABJ/CS/278/2013 and FHC/ABJ/279/2013) instituted against NNPC, brought pursuant to the FOIA, which were struck out in December 2013.

If it is true that the judicial authorities cited by the NNPC in those two cases actually held that the FOIA is inapplicable to NNPC, then I advocate that the decisions of thee Federal High Court in those two cases should be appealed. The Presidential Committee Against Corruption would do well to encourage and support the body that initiated the two cases to appeal. Alternatively, or in conjunction with appealing the decisions of the FHC in the two cases, the National Assembly should also be put under pressure to amend the FOIA to ensure that the definition of a public institution under the Act conforms to constitutional provisions.   

 The third excuse for not publicly releasing the critical items of information sought by Mr. Femi Falana, SAN, is that Section 15(1)(a)-(c) of the FOIA excludes the categories of information sought from being disclosed for the sake of protecting trade secrets, commercial and contractual obligations/agreements to third parties, in the absence of a prior consent to disclose such information.

The challenge posed by the irresponsible sense of impunity inherent in the third excuse by the NNPC is that Section 15(1)(a)-(c), which elevates commitment to shady contractual dealings over and above transparency in public institutions is that the FOIA should urgently be amended to the effect of deleting this particular section 15(1)(a)-(c), which promotes corruption over transparency.

The desperation of the NNPC top hierarchy to waste the common patrimony buried in the NNPC over decades, is shown in the attempt to give the impression that Section 15(4) of the FOIA gives the NNPC some protection against public disclosure of information sought pursuant to the FOI Act. Nothing can be further from the truth. Indeed, section 15(4) undermines section 15(1)(a)-(c), which exempts certain types of information from being disclosed. Indeed, section 15(4) of the FOIA is an exemption provision to section 15(1)(a)-(c) and permits disclosure, notwithstanding the provisions of section 15(1)(a)-(c).

It appears to be of utmost imperative to reproduce section 15(4) which is one of the best sections in the Act that protects public good as against the false impression created of the import of section 1594). This section provides as follows:

“A public institution shall disclose any information described in subsection (l) of this section if that disclosure would be in the public interest as it relates to public health, public safety or protection of the environment and, if the public interest in the disclosure clearly outweighs in importance any financial loss or gain to, or prejudice to the competitive position of or interference with contractual or other negotiation of a third party.” (Section 15(4), FOIA).

From the point of view of the aversion of ordinary people for corruption and their high expectation that corrupt public officials should be brought to book, which was the reason why the PMB-led APC was voted into power, I argue that it is in the public interest for the NNPC to disclose all the items of information sought by Mr. Femi Falana, SAN. Corruption has corrupted all aspects of the environment, naturally, socially and economically. Corruption has denied government of the necessary funds to revamp the health care system for the benefit of ordinary people. Corruption has contributed to monopolization of public resources and subjected majority to a life of agony and misery to the extent of subjecting society to unprecedented state of insecurity.

It is in the overriding public interest that corruption in NNPC is exposed as the Constitution empowers the National Assembly to carry out oversight functions, and conduct investigations into the affairs of public institutions, including corporations financed by government, ‘to expose corruption, inefficiency or waste” in public or statutory corporations “in the execution or administration of laws” made by the National Assembly (Section 88(2)(b), Constitution of the Federal Republic of Nigeria, 1999, as amended.

It is in the public interest and in the interest of implementing the Constitution for the facts and documents demanded to be released by the NNPC, in accordance with Section 15(5), of the Constitution, which  prescribes that “the State shall abolish all corrupt practices and abuse of office”.

In the context of a recent publication by the NNPC that it spends N774m on a daily basis, amounting to about N24bn monthly, as subsidy on 50m litres of Premium Motor Spirit (PMS) allegedly consumed nationally, in spite of high levels of scarcity of fuel, it is not too much to ask the NNPC, as a public institution or statutory corporation to make public disclosures of its revenue, expenditures, subsidies, and so on.

I submit that the NNPC has nothing to lose, from the point of view of public interest and public health, by making public disclosures of its finances and activities. Nigeria and the NNPC, owned by the people of Nigeria, have everything to gain in terms of instilling sanity and curbing corruption in public institutions. Contracts must be based on ethical standards. The NNPC Act must be amended to the effect that details of its contractual agreements are subject to public disclosures and accountability.

Only a country populated by people who lack a sense of self respect would concede that the NNPC is not a public institution that may be liable to be commanded to make disclosures of its activities and finances on a regular and systematic basis.

Conclusion

The effrontery of the NNPC to declare that it is not a public institution that may be compelled to disclose its financial and other activities has helped to show the unprecedented political impunity to cover up likely large scale financial corruption that is perceived to be going on within the NNPC, which several probe panels by the National Assembly and past governments have established in terms of subsidy deals, diversion of products, fraudulent contract awards, scams involving Turn Around Maintenance (TAM) and so on.

The position of the NNPC on the request by Mr. Femi Falana, SAN has unfortunately confirmed Transparency International’s recent report that deeper levels of corruption are perceived to be occuring under the APC regime than ever before. Rather than helping to change the perception of the PMB/APC regime as rotten, the NNPC position on whether or not FOIA binds it has further rubbished the image of the regime.

In spite of the collapse of oil fortunes in the international market, Nigeria’s economy still largely relies on oil. Nigeria is oil/NNPC. Oil/NNPC is Nigeria. Any serious fight against corruption must necessarily begin and end at NNPC. Where NNPC is declared officially and judicially (as claimed by the NNPC) to be immune from being asked to be accountable in order to ascertain its status/integrity on transparency measures, then the PMB/APC regime is telling Nigerians that it is beyond redemption and ordinary Nigerians must stop looking forward to it as solution to the myriads of problems confronting this country.

Those mismanaging the NNPC have a false sense that they own Nigeria and its resources and that they have a right to, whimsically and capriciously, deal with Nigeria and its resources whichever way they like. This attitude should not be accepted. Ordinary Nigerians must show that they have a sense of self respect and that they are not slaves without the right to ask questions and insist that those wielding the reins of power, economically and politically, are accountable. Nigeria is not the personal estate of a cabal. Nigeria belongs to all Nigerians. This land is ours, not for a select few.

The FOIA ought to be amended urgently to ensure it is rid of all provisions which suggest it is another piece of legislation to cover up corruption in public institutions. The managers of the NNPC and government officials must be made, not only accountable but responsible and responsive to the yearnings and welfare interests of ordinary people.

At the minimum, the PMB/APC regime must take disciplinary actions within the NNPC to convince ordinary people that the letter by the NNPC to Mr. Femi Falana, SAN, does not officially enjoy the support of Aso Rock. Otherwise, ordinary people of Nigeria would be compelled to draw necessary conclusions and revalidate the negative public perception of the extent of rottenness of the PMB/APC regime as reported recently by Transparency International.     

Femi Aborisade, Esq.

8th March 2018.