By Onyewuchi Ojinnaka
The Minister of Power, Works and Housing, Mr Babatunde Fashola (SAN), has replied to request by a human rights and advocacy organisation, the Socio-Economic Rights and Accountability Project (SERAP), seeking an information under the Freedom of Information Act (FOIA) from the power sector under his ministry.
In his reply to SERAP, Fashola promised to refer the request to the Ministry’s agencies for necessary action and appropriate response to details of alleged contractors and companies that collected money for electricity projects but failed to execute any projects.
Fashola’s latest response came after his first letter to SERAP last month in which he said: “We have searched the Ministry’s record and the information you applied for is not held by the Federal Ministry of Power, Works and Housing (Power Sector).”
However, not satisfied with Fashola’s response, SERAP reacted and disagreed with his response by positing that the public expectation is that government information, when in the hands of any public institutions and agencies, should be available to the public, as prescribed by the FOI Act.
SERAP argued that the FOI Act should always be used as an authority for disclosing information rather than withholding it.”
Responding to SERAP’s reaction, Mr Fashola said that the Ministry’s letter to the organization was not an attempt to deny the request for information, adding that the Ministry is committed to compliance with the Laws of Nigeria including the Freedom of Information Act, 2011.
He promised that his Ministry will refer the request to its agencies for necessary action and appropriate response.
Fashola’s letter dated March 4, 2019 and signed on his behalf by Louis O.N. Edozien, Permanent Secretary (Power) read in part:
“I write to acknowledge the receipt of your letter dated 8th February 2019 which is in response to the Ministry’s letter dated January 2019.”
“There may be instances of part-payment against certification of commensurate value for materials and services in achieved contract milestone even though the entire contract is not 100 percent performed.”
“But the Ministry does not have a record of any contractors that collected 100 percent payment and failed to execute a contract.
The Ministry’s procurement and contract administration processes are strictly guided by relevant regulations that require the Ministry to ensure Advanced Payment is limited to 15 percent of the contract sum and is backed by an Advanced Payment Bank Guarantee (APG).”
“Our regulations also require the Ministry to release any APG only after recovery of commensurate value of contracted materials and services from the contractors who provided the APG.
We make payments only upon certification of receipt of commensurate value for materials and services from the contractor.”
SERAP deputy director Kolawole Oluwadare while responding to the latest letter by Fashola, said:
“We welcome Mr Fashola’s latest response, and look forward to the Ministry’s agencies getting to the root of the matter by publishing without further delay details of alleged corrupt contractors and companies, as contained in our FOI request.”
It would be recalled that Mr Fashola had earlier said in response to SERAP’s FOI request that: “the Ministry has searched for the requested information on details of alleged contractors and companies that collected money for electricity projects and failed to execute any projects, but we could not find it from our records.”
Mr Fashola’s initial response was consequent the SERAP’s FOI request and suit number FHC/L/CS/105/19 filed last month at the Federal High Court, Ikoyi, Lagos.
The suit is seeking “an order for leave to apply for judicial review and an order of mandamus directing and/or compelling Mr Fashola to provide specific details on the names and whereabouts of the contractors who collected public funds meant for electricity projects but disappeared with the money without executing any projects.”
SERAP’s reaction to which Mr Fashola has now responded read in part: “Indiscriminate attempts to limit disclosure of information of public interest such as the details of the names of alleged corrupt contractors and companies that SERAP is seeking, will undermine the government’s expressed commitment to transparency and accountability.”
“We believe that the predisposition by all public institutions and agencies including the Ministry of Power, Works and Housing should be to grant access to public information and not to implicitly deny it.
Indeed, disclosure, not secrecy, is the dominant objective of the FOI Act.
This objective would be defeated if there is public perception that public institutions and agencies attempt to shield information of public interest from disclosure or abdicate statutory responsibilities.”
“Although we have filed a case in court for remedial action and seeking an order to compel you and your Ministry to release the information requested.
We urge you to take proactive steps to obtain the information from any other public institution or agency that may be holding the requested information, and to send to us the information without further delay.
Your Ministry should not wait until the court makes it decision to compel you to disclose the requested information.”
“SERAP believes that it should be the practice of your Ministry and indeed other public institutions and agencies to hold and keep records of public information including on names of alleged corrupt contractors and companies with the expectation to release any such information when requested.”
“SERAP believes that even assuming that your Ministry has faithfully searched for the information requested and that the information is not held by your Ministry as claimed, your Ministry should still have taken steps to approach and request from other public institution or institutions that may be holding the requested information, in line with the provisions of the FOI Act.”
“SERAP believes that your response implicitly amounts to a refusal by your Ministry to provide the information requested, as allowed under the FOI Act.”
“We note that your Ministry has a responsibility under Sections 1(1)(2), 2(2)(3)(4), 5 and 9 of the FOI Act to record and keep information about all its activities, operations and businesses, including on the specific names and details of alleged corrupt contractors and companies in order to facilitate public access to any such information.”
