This article was first featured in the Insight newsletter.
Background
After a protracted and often fractious legislative journey that spanned nearly twelve years, the Freedom of Information Act (FOI) was finally enacted in 2011, marking a watershed moment in Nigeria’s constitutional and democratic development. Its passage signified more than legislative triumph; it was a fundamental reconfiguration of the relationship between the state and the governed—a pivot from opacity to transparency, from official secrecy to accountable governance. The Act entrenched, in statutory form, the citizen’s right to access public records and information, and placed an affirmative obligation on public institutions to proactively disclose information. In doing so, it codified the principle that public office is a public trust, and that access to information is not a privilege granted at the discretion of the state; but a right inherent in citizenship and necessary for the exercise of other democratic rights such as participation, oversight, and redress.
Civil Society Organisations (CSOs), long-standing champions of democratic accountability, were at the vanguard of the advocacy for the FOI passage. Their involvement was not incidental; it was strategic and rooted in a clear understanding that without information, power remains unaccountable, and without accountability, democracy remains ornamental.
It is therefore unsurprising that the present suit under review was initiated by a consortium of CSOs against the Edo State Agency for the Control of AIDS (EDOSACA), a public body funded by public resources, and one statutorily obligated to operate within the transparency architecture established by the FIA. The case embodies the legal and normative contest between the entrenched culture of bureaucratic secrecy and the emergent ethos of public openness. It raises, in sharp relief, the question of whether subnational public institutions, in this instance, an agency of a state government, are bound by the obligations of the Freedom of Information Act, particularly in a federal system where legislative competence and jurisdiction often intersect and diverge in complex ways.
At the heart of the matter is a broader constitutional imperative: the right of the people to know. The suit compels the courts to once again pronounce on the constitutionalisation of transparency, and to affirm the jurisprudence that holds public institutions, whether federal or state, to standards of openness and accountability, especially where their functions affect the public interest. Ultimately, the action by EDOSACA is not just a test of the enforceability of the FOI Act. It is a test of the Nigerian state’s commitment to the democratic principle that government must not only serve the people, but must do so under conditions of full disclosure.
The outcome of this case has far-reaching implications for the right to information, the scope of statutory compliance across the federation, and the broader struggle to build a culture of open governance in Nigeria.
Facts of the Case Before the High Court
A coalition of Civil Society Organisations wrote a Freedom of Information request with the Edo State Agency for the Control of AIDS (EDOSACA) for records pertaining to the HIV/AIDS Program Development Project (HPDP II). These records included financial records, grants, criteria for grant allocation and contract awards between 2011 and 2014.
On 4th February 2014, the Appellants instituted an action by Originating Summons before the Edo State High Court, Benin, asking the court to determine whether the information sought after by the applicant (Appellant) ought to be granted under the Freedom of Information Act 2011. The High Court ruled in favour of the appellant and stated that the FOI Act was applicable and affirming their rights to information.
Appeal to the Court of Appeal
The respondent appealed against the judgment of the trial court before the Court of Appeal, which allowed the appeal on the ground that Edo State has not domesticated the Freedom of Information Act and the respondents were not obligated to adhere to the provisions of the Act because it was only applicable to records of the Federation and not states.
Appeal to the Supreme Court
Unsurprisingly, the Appellants were unpleased and appealed to the Supreme Court on eight grounds, raising two issues which are:
a. Whether the Court of Appeal was right in law when it held that the Freedom of Information Act enacted by the National Assembly pursuant to section 4 (1)(2)(3) and 4(a) and (b) of the Constitution of the Federal Republic of Nigeria is not binding and applicable in Edo State under the doctrine of covering the field.
b. Whether the Court of Appeal was right in law when it held, despite the provisions of item 4 part 2 of the 2nd Schedule to the Constitution of the Federal Republic of Nigeria 1999 as amended, that the Freedom of Information Act enacted by the National Assembly as it relates to Public Records and Archives is not applicable to the Public Records and Archives of Edo State.
Appellant’s Argument
On the one hand, the Appellant’s counsel submitted that the provisions of the FIA apply to all the states of the federation being an Act enacted by the National Assembly pursuant to Section 4(1), (2), (3), (4), (5) of the Constitution. The Appellant also submitted that the decision of the Court of Appeal was wrong because the powers of the State House of Assembly to make laws on public records and archives is subject to that of the National Assembly pursuant to item 4 and item 5 part 2 of the second schedule to the Constitution.
The Appellant also referred to the Court of Appeal decision in Alo v. Speaker, Ondo State House of Assembly & Auditor-General CA/AK/2017 where the Court of Appeal had earlier held that the provisions of the FOI Act was applicable to public records in all states of Nigeria.
Respondent’s Argument
On the other hand, the Respondent argued that the doctrine of covering the field is inapplicable to the case of the Appellant and that provisions of the FOI Act 2011 applies only to the records of the government of the federation and not of Edo State.
Judgment of the Supreme Court
The Supreme Court unanimously set aside the Court of Appeal’s decision and restored the judgment of the trial court, to the effect that the FOI Act applies not just to Edo State in context but to all states of the Federation.
As raised in the first issue for determination before the Supreme Court, one of the major doctrines of law in this case is the doctrine of covering the field. The doctrine of covering the field is constitutionally enshrined and the effect of the doctrine is that where a federal law exists on a subject matter, any state law on the same subject matter would be void for inconsistency with the Constitution or federal law.
Section 4(5) of the Constitution provides that:
If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall, to the extent of the inconsistency, be void.
It is worthy of note that Edo State Legislature did not exercise the concurrent power and in the absence of any law, the issue of inconsistency does not arise. Hence, the doctrine cannot be invoked.
While the doctrine of covering the field may not apply, the approach of the Justices of the Supreme Court in giving judicial interpretation to the provisions of item 4 and item 5 Part II of the 2nd Schedule of the Constitution is commendable. It provides:
- The National Assembly may make laws for the Federation or any part thereof with respect to the archives and public records of the Federation.
- A House of Assembly may, subject to paragraph 4 hereof, make laws for that State or any part thereof with respect to archives and public records of the Government of the State.
By referring to the definition of the word ‘Federation’ in section 318 of the Constitution to mean the Federal Republic of Nigeria as a whole, the National Assembly can make laws for the Federal Republic of Nigeria and Edo State is a constituent.
Similarly, the provision of item 5 of the concurrent list which empowers a House of Assembly to make laws with respect to archives and public records is made subject to item 4 empowering the National Assembly to make laws for the Federation or any part thereof. The use of the words ‘subject to’ in drafting was also considered in this judgment. The word establishes a relationship of dependency and hierarchy between the House of Assembly and the National Assembly. It is also a logical inference that in an instance where there is no enactment by the House of Assembly in Edo State and there is another enactment higher in rank, the one higher in rank should apply, and this was the reasoning of the Supreme Court in reaching the decision.
Although the Supreme Court only analysed the use of the words ‘Federation’ and ‘subject to’ in arriving at the decision, attention should also be drawn to the provision of item 4 of the concurrent list, particularly the phrase “the Federation or any part thereof”. The words “any part thereof” can also be construed to mean any part of the Federal Republic of Nigeria, which would include the states.
Impact and Projections of This Judgment
This is a landmark decision of the Supreme Court that has laid to rest the conflicting positions of the Court of Appeal. In 2017, Alo v. Speaker, Ondo State House of Assembly & Auditor-General CA/AK/2017, the Court of Appeal sitting in Akure ruled that the FOI Act applies to the states of the Federation. Then in the Austin Osakwe v. EDOSACA case, the same Court of Appeal in 2018 held that the FOI Act is inapplicable. What this meant at the time the decision was made is that there were two conflicting positions of the Court of Appeal on the same question of law. Because Nigeria is a country bound by the principles of stare decisis, these two conflicting positions would have been a clog in the determination of suits by lower courts but for the intervention of the Supreme Court.
Public institutions are defined in Section 31 of the FOI Act to mean any legislative, executive, judicial, administrative or advisory body of the government, including boards, bureau, committees or commissions of the State, and any subsidiary body of those bodies including but not limited to committees and sub-committees which are supported in whole or in part by public funds or which expend public funds, and private bodies providing public services, performing public functions or utilizing public funds. With this judgment of the Supreme Court, these public institutions both at the Federal and State level are all bound by the FOI Act to deliver not only public records or documents but also fiscal reports and comply generally with all the provisions of the FOI Act. This places a high threshold of transparency and accountability on public institutions.
By section 2(6) of the FOI Act, any person with a right of access conferred on him by the Act has a right to institute proceedings in court to compel a public institution to comply with the provisions of the Act. Since the Supreme Court pronounced that the Act applies to public records and archives of the states, public institutions in each state can no longer deny information requests on the ground that the Act is only applicable to Federal institutions only. Public institutions in each state would likely experience a surge not just in applications for records but also an avalanche of court proceedings upon refusal to comply with the provisions of the Act.
The courts must be ready for such litigations and also ensure effective enforcement of FOI Act-related judgments. Apart from the initial advocacy of Civil Society Organisations for the enactment of the Act, this further means that NGOs and journalists can invoke the FOI Act to access state-held information.
Conclusion
The decision of the Supreme Court in Comrade Austin Asakwe & Ors v. Edo State Agency for the Control of AIDS (EDOSACA) stands as a landmark pronouncement in the evolving jurisprudence on the right to information in Nigeria. More than a mere resolution of previously conflicting judicial opinions from the lower courts, the ruling affirms, with constitutional clarity, the overriding authority of the National Assembly to legislate on matters that bear on fundamental rights, including the right of access to public information across the entire federation.
By holding that the Freedom of Information Act (FOI Act) is binding on all public institutions, whether federal or state, the Supreme Court has dismantled the longstanding shield of federalism often deployed by state actors to evade transparency. In doing so, the Court situates the right to information within the constitutional framework of democratic accountability and participatory governance, as envisaged in Sections 14(2)(c) and 39 of the 1999 Constitution (as amended). It also aligns Nigeria’s jurisprudence with international human rights instruments to which the country is a signatory, such as Article 9 of the African Charter on Human and Peoples’ Rights and Article 19 of the International Covenant on Civil and Political Rights.
The implications of this judgment are both practical and transformative. It reaffirms and strengthens the hands of citizens, journalists, and civil society organisations (CSOs) in their pursuit of governmental transparency and administrative justice. By validating the FOI Act as a national legislation of general application, the Court empowers non-state actors to hold public institutions at all levels accountable, thereby narrowing the democratic deficit and deepening the culture of openness that is essential to good governance.
Furthermore, the decision imposes a clear legal obligation on all tiers of government to maintain proper records, develop responsive information management systems, and comply with the disclosure provisions of the FOI Act. The days of administrative impunity cloaked in procedural inertia must give way to systems of record-keeping that reflect constitutional fidelity and democratic responsibility. Public institutions that fail to adapt to this new legal environment expose themselves to the risk of judicial sanctions and reputational damage.
In conclusion, the Asakwe judgment is not merely a technical reaffirmation of legislative competence. It is a jurisprudential milestone that recalibrates the balance between state power and citizen agency. It affirms that transparency is not a discretionary policy option, but a constitutional imperative. As such, the judgment should be read not only as a vindication of the FOI Act, but as a clarion call to embed the right to information within the daily architecture of public administration. The Supreme Court has spoken in defence of the people’s right to know. It is now incumbent upon state institutions to listen and to act.