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Aregbesola And The Bolekaja Human Rights Campaigners,
“We still maintain that our request is legal, permissible and constitutional, bearing in mind the provision of Section 182 (1) (c), 189 (1) (b) and section 2 (2) of Freedom of Information Act 2011 LFN for the reason that the sanity of our leaders must be evidently determined, particularly when such leaders have put their sanity into question by their act and/or omission.” – Egalitarian Mission Africa (EMA)
This is part of the reason I’m sometimes exasperated with all these fly-by-night human rights groups which are nothing more than partisan political vehicles for elements in government. So, must they claim with a straight face that Ogbeni Rauf Aregbesola, an elected Governor of a federating State is mad simply because he criticises or criticised the President? Is President Goodluck Jonathan now the Almighty God that cannot be criticised?
Okay, let’s start from the most basic and consider what they are calling abuse and if indeed this should be a basis to declare the Governor of a State insane. They claim that on 20 February 2011, Aregbesola “threw caution and decorum to the winds to launch an unprovoked attack on the person and office of the President of Nigeria to the embarrassment of dignitaries present” without stating what exactly he said that constituted the attack. Yet, despite claiming on one hand that this attack was “unprovoked”, they acknowledged on the other hand that it was a response to the President calling Aregbesola and members of his party “RASCALS”.
They also accused him of using “subordinates” to attack the Vice President Namani Sambo, including further accusing him of launching “a worst form of attack which is out of control and want of reason, against a colleague Governor from the same zone”. This was in reference to Aregbesola’s comment against Governor Olusegun Mimiko of the Labour Party on 7 March 2012 during an Action Congress of Nigeria (ACN) party function.
The truth is everything the Governor is accused of here directly is nothing more than the usual partisan ripostes and barbs politicians throw at each other. This isn’t about whether one supports whatever it was Aregbesola said, but for anyone to use this as a basis to declare him mad is not only laughable, it reduces public engagement to a farcical display of intellectual emptiness. Or should we now call on the United States authorities to round up all the Republican presidential contenders and dump them in an asylum because of their vicious attacks on each other and on President Barack Obama? Shouldn’t Egalitarian Mission Africa, while they are at it, ask for the medical papers of the “subordinates” supposed used to attack Sambo as well? This is simply the height of irresponsibility. Claiming that this request is “devoid of politics” when it stinks all over of an attempt to fight Jonathan and Mimiko’s battles is puke-worthy.
To be honest, these persons are toying with libel and if Aregbesola takes them up, they won’t find it funny! But, of course, he has to ignore their rants. They are just looking for cheap publicity and a pay day from Aso Rock or some other principals somewhere. But, to be fair to the President, I wouldn’t say these persons are his attack dogs. They are just desperados looking for attention.
You do not have to read Nigeria’s Freedom of Information Act 2011 to know that the medical records of anyone in public or not must be an exemption under a Freedom of Information request, because such a request is not consistent with the public interest and protection of personal privacy. For a start, if these persons had checked the law and its applicability, they would have seen that the Freedom of Information Act 2011 is a law that has to be adopted freely by each State and fashioned to serve such federating State’s peculiar needs without derogating from the spirit and intendment of the law. By virtue of that, they would have seen, for instance, that so far only Lagos and Ekiti States have adopted it at State level with the response period in each case extended from 7 to 14 days. They would have realised that the law they are busy quoting does not for now apply in Osun State or, to put it better, no public body, quasi-public body or private concern in Osun State is obliged to listen to them. Now, this is not saying Osun State should not adopt the law. In fact, it ought to have done so since. This is also not saying Osun State will not accede to a proper Freedom of Information request based on the federal law, because so far, there’s no record of the State turning down any such request. The point I’m making is that because the subject-matter of the Act is on the Concurrent List, it has to be replicated in the State to have the force of law therein. So, really, all the hot air is unnecessary, because strictly speaking the law isn’t on their side.
Worse still is the fact they are quoting sections 182(1)(c), 189(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 and section 2(2) of Freedom of Information Act 2011 to support their claim. I don’t know who their lawyers are, but if I were these guys, I’ll go and ask those lawyers for a quick refund, especially if we consulted with them before publication! Okay, seriously, let’s first look at these sections of the law and what they say:
Section 182(1)(c) of the Constitution of the Federal Republic of Nigeria 1999: “No person shall be qualified for election to the office of Governor of a State if under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind”.
Section 189(1)(b) of the Constitution of the Federal Republic of Nigeria 1999: The problem here is that the (b) part of Section 189(1) cannot be read or implemented in isolation, because it is part of a requirement emanating from section 189(1)(a). In other words, section 1989(a) provides the condition precedent. So, let’s see what they say:
Section 189 (1): “The Governor or Deputy Governor of a State shall cease to hold office if (a) by a resolution passed by two-thirds majority of all members of the executive council of the State, it is declared that the Governor or Deputy Governor is incapable of discharging the functions of his office; and (b) the declaration in paragraph (a) of this subsection is verified, after such medical examination as may be necessary, by a medical panel established under subsection (4) of this section in its report to the speaker of the House of Assembly”.
So, in essence, under section 189 (1)(a), if the members of the Osun State executive council reach the conclusion that the Governor is incapable of discharging the functions of his office due to illness to the Governor or what they consider to be a serious medical condition and as a result pass a resolution by two-thirds majority of all members, section 189(1)(b) would be triggered and a process of medical examination of the Governor will commence with the Speaker appointing a medical panel to do so along the lines indicated in section 189(4). What subsection 189(4) says is that: “The medical panel to which this section relates shall be appointed by the Speaker of the House of Assembly of the State, and shall comprise five medical practitioners in Nigeria – one of whom shall be the personal physician of the holder of the office concerned; and (b) four other medical practitioners who have, in the opinion of the Speaker of the House of Assembly, attained a high degree of eminence in the field of medicine relative to the nature of the examination to be conducted in accordance with the foregoing provisions of this section”.
It is only after this process of verification has been done as painstakingly indicated by the Constitution, with the medical panel certifying in its report under section 189(2) “that in its opinion the Governor or Deputy Governor is suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office” that a notice would then be signed by the Speaker of the House of Assembly which shall be published in the Official Gazette of the Government of the State to make the Governor under section 189(3) to “cease to hold office as from the date of publication of the notice of the medical report pursuant to subsection (2) of this section”.
There are exactly similar provisions that apply to the President and the circumstances he’d cease to hold office due to illness or infirmity of mind. For instance, Nigerians would recall that members of civil society at the time of President Umaru Yar’Adua called on the Federal Executive Council to invoke the provisions of Section 144 in relation to the President as section 189 is in relation to the Governor. Of course, the then Federal Executive Council didn’t do it. They relied on the dubious ‘Doctrine of Necessity’ from the National Assembly to get Goodluck Jonathan on the saddle.
Anyway, the point here is that anyone reading the above can clearly see that these fellows are dancing dangerously in the realms of libel. There is nothing happening in Osun State or to the Osun Governor to necessitate the claims they are making or the constitutional provisions they are invoking. Any libel court, reading all their statements on this together, will interpret this as them calling the Governor mad and how they could have reached that conclusion without a diagnosis, but only based on the Governor’s legitimate or illegitimate criticism (call it abuse it you like) of the President will be hard to explain!
They also quoted Section 2(2) of the Freedom of Information Act 2011 as empowering them to make such a request. What does this provision say though? It simply says: “A public institution shall ensure the proper organization and maintenance of all information in its custody in a manner that facilitates public access to such information”. But what our agenda-driven friends aren’t saying is that the Act in that reference to “all information” does not mean all information held, but all information required to be released by such a body sans such information as are exempted from being so released under the Act. That is why the first thing the Act did by way of an Explanatory Memorandum is to say the following:
“This Act makes public records and information more freely available, provide for public access to public records and information, protect public records and information to the extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences for disclosing certain kinds of official information without authorization and establish procedures for the achievement of those purposes”.
So, it does not only release information, it also protects some information to the extent consistent with the public interest and the protection of personal privacy, protection of serving public officers from adverse consequences for disclosing certain kinds of official information without authorization and it also establishes procedures for the achievement of those purposes. That is why it states clearly some exemptions from disclosure. However, in a hurry to show their ignorance, our friends did not bother looking at the provisions of section 14 (a), which states: “Subject to subsection (2); a public institution must deny an application for information that contains personal information and information exempted under this subsection includes – (a) files and personal information maintained with respect to clients, patients, residents, students, or other individuals receiving social, medical, educational, vocational, financial, supervisory or custodial care or services directly or indirectly from public institutions”. The imperative here is no accident. In essence, the fact that it “must” not be disclosed is strict. Section 16 further reiterated clearly that medical information or information covered under the health workers – client/patient privilege is out of bounds for disclosure, just like lawyers-clients privilege and journalism confidentiality privileges amongst other exemptions under sections 11, 12, 15, 17, 19, 20, 21and 26 of the Freedom of Information Act, 2011.
Though section 19(2) allows for applicants to ask for a waiver of these provisions where public interest ‘clearly’ outweighs the protection of the individual’s privacy or the injury that disclosure would cause, it is difficult to see how such an argument can be made here when no prima facie case has been made for the disclosure of this information, except for the harebrained reason that the Governor is critical of the President or is abusing him in a democracy! In fact, if these fellows approach any Court at all with this, they will learn the hard way that such would be considered an abuse of the court process!
But, even if we were to consider this under the general doctrine of fairness, on what basis would a so-called human rights organization ask that the medical records of one Governor out of 36 (and one public official out of thousands) be handed over in the name of disclosure under the Freedom of Information Act 2011? Is this Governor or public official the only one criticizing the President in a country of mutes? Of course, we’ve established that the law does not support this, but I’m just raising this conjecturally.
If Egalitarian Mission for Africa wants to be useful, it should just slink away into some dark corner and soberly re-evaluate its real mission vis-à-vis its shameful role in this whole affair. It should leave President Goodluck Jonathan and Dr Olusegun Mimiko to fight their battles, if they feel like it and both would do well to distance themselves from these desperados as well. If the organization wants to further engage in public activism in a credible way after this fiasco, it should start by doing two things immediately. First, it must apologies to Nigerians for trying to take them on a ride in the name of fighting for public interest and secondly, it must apologize to Ogbeni Rauf Aregbesola for its insulting and libellous claims. We need to take public affairs more seriously. Of course, they would have been perfectly within their right to criticize Aregbesola for whatever they think he did or said wrong, but to ask for his medical papers and infer he is mad is a little over the top. Or does the organization’s egalitarian mission now mean that every person who criticizes or abuses a public officer in public space should be subjected to a psychiatrist or medical examination? No, these chaps need to take a hard look at themselves and acknowledge they got this wrong. It’s embarrassing.