By Nkemdilim Ilo
Public procurement and contracting abuses have human costs. Unnecessary projects, inferior and unreasonably costly work, the difference in incomes, and unjustified or unexpected price increases exacerbate inequality. In the absence of appropriate accountability mechanisms in this strategic area, ghost projects will be funded, poor quality roads, schools, and hospitals will be built, while essential medicines and services will not be delivered. Yet getting access to information on public contracts is typically no simple process – certainly, that has been the experience in Nigeria. It is here that the significance of Freedom of Information for contract monitoring is sensed, as it generates citizen participation and appropriate checks and balances.
In Nigeria, the Freedom of Information Act (FOIA) 2011 was passed to give access to publicly held information irrespective of the reasons for the request. This is a reason to cheer as it should make contracting information easier to come by and yet, for us at Public Private Development Centre (PPDC), using the FOIA didn’t come without a fight. At the onset, a challenge we constantly encountered was the recurring perception that the FOIA was a law that constituted a nuisance to hard-working public servants who were believed they were sworn to secrecy under the Official Secrets Act (which was not the case, as the FOIA took precedence) and despite several advocacies and policy briefs to the contrary, we frequently had our requests denied. In ambitions to giving life to the spirit of the law, we filed several FOI litigations. Litigation was the route to go for several reasons: (1) developing jurisprudence on provisions of the FOIA (2) changing a culture of secrecy, and (3) ensuring that everyone, no matter who, has the opportunity request and receive information.
PPDC is recognized as one of the most active organizations in Nigeria that has utilized the Freedom of Information Act, 2011 to drive the demand and supply of publicly held information, especially towards ensuring better efficiency in the delivery of public services. With the passage of the Act in 2011, PPDC began evaluating how public institutions complied with its provisions in relation to public expenditure. We’ve done this successfully each year after the passage of the Public Procurement Act in 2007. Each year, FOI requests were (and still are) sent out to federal public institutions requiring disclosure of contracting information. From the responses to these requests, PPDC has built a large databank of contracting information, which helped make the case for open contracting as a national policy using the Budeshi platform.
Testing out compliance served a multitude of purposes:
(1) building up a repository of structured contracting information that is publicly available (our platform serves as a source for stakeholders and has been used to build other contract disclosure platforms
(2) improving disclosure culture by identifying public institutions that needed targeted advocacy and training
(3) promoting healthy competition among public institutions by recognizing institutions that were striving towards compliance
As a model that may be useful to other organizations, or in other climates and context as Nigeria, the importance of dynamism cannot be overemphasized. Reforming a culture of secrecy requires using a multifaceted approach to challenge the status quo. We hope that our approach to using the FOI and our lessons learned from the process are useful to likeminded anti-corruption advocates and serve as a model that can be transplanted and replicated.
One learning is that it is important for FOI advocates in the public sector to build an institutional knowledge base on the responsibilities and possibilities of the FOI. PPDC has also come to better acknowledge public agencies who compiled information and use their work to inspire and motivate other agencies; this gave rise to the annual FOI Compliance Ranking which began in 2014 and recently released the 2018 edition. This ranking assesses the level of public access to procurement-related information.
With the advent of Budeshi (an open contracting tool built on the Open Contracting Data Standards (OCDS) and the push towards opening up contracting processes in Nigeria – find an interesting read of that journey here), it is possible to draw the conclusion that there is more compliance with the FOI, especially with the proactive disclosure of contracting information. However, there is also an increase in instances of flagrant disregard for the law with prominent public institutions declaring that the law does not apply to them.
Contract data is increasingly available, but not yet at the comprehensiveness, quality or ease of access necessary. When incentives have not encouraged officials to release information, the FOI has been a useful instrument. While there is still much work to be done to understand and make use of the data once obtained, we can’t lose sight of the fact that an effective access to information regime gives its citizens a voice and encourages accountability for delivery of public services.