PROCUREMENT MONITOR POLICY BRIEF

Transcription

1 PROCUREMENT MONITOR POLICY BRIEF REDUCING SECURITY SECTOR CORRUPTION RISKS THROUGH 1 A SYSTEM FOR CLASSIFYING SECURITY INFORMATION FOREWORD This policy brief recommends that as part of a broad strategy to reduce corruption risks in the security sector, the Nigerian Government needs to adopt a system for classifying information. Considering that there may be a need to withhold from disclosure, for a period, certain categories of information and the corresponding need to disclose some other categories of information at given times, all in the interest of improving national security, the applicability of these varied principles is better achieved when the security sector is guided by written rules. These written rules on what information may be accessed or not accessed is what is referred to as a system for classifying security information. This is because national security, like several matters concerning the State, is too grave a matter to be left to personal intuition. To be most effective, the recommended classification system would draw its legitimacy from public accountability provisions in the Nigerian constitution and further from the Nigerian Freedom of Information Act, The brief recommends that the classification system is uniformly applicable across security sector institutions, that such a system is publicly accessible and is revised periodically.. KEY POLICY RECOMMENDATION National security efforts in Nigeria stand to benefit from publicly available rules on classifying security information. Such rules for classifying information should be revised periodically to reflect the effect of time on the sensitivity of documents. It is recommended that these rules include: A brief rationale for classifying security information A brief explanatory note on the harm/injury and public interest test and how that is being applied to classify security information Various categories/levels of classification Timelines for revision of classified information Maximum classification period Information that would be proactively available Information that would be available on request etc. A BACKGROUND In the last two decades, Nigeria has undergone a number of legal and policy reforms to entrench transparency within public sector practise. These reforms range from due process mechanisms within public procurement practice to accessing information from public institutions. The premise for this within the Nigerian constitution is threefold: sovereignty belongs to the people of Nigeria; the primary function of Government shall be the provision of welfare and security; and the participation of people in their 2 Government is to be ensured. Conversely, the norm in Nigeria is to observe Government-held information as official secrets; and this requires all public officers to sign an oath of secrecy 3 on assumption of office. Although the Freedom of Information Act, 2011 expressly takes precedence over 4 inconsistent provisions in laws previously enacted, the attitude of secrecy has not yet been fully overcome. In no sector of Government is the practise of secrecy more prevalent than in the security sector. For example, 1 This policy brief was written by Seember Nyager of the Public and Private Development Centre, as part of the AccessNG project. 2 See Section 14(2) of the Constitution of the Federal Republic of Nigeria 1999 as amended 3 See the 1st Schedule of the Oaths Act See Section 27(1) of the Freedom of Information Act, 2011 available through:

2 rankings on the public's access to [procurement] information among 14 security sector show a very low level of compliance in providing details of procurement processes to the public. Details of this are provided later on. The need for a framework for accessing publicly held information cannot be overemphasized. The most heinous of crimes against the Nigerian state and consequently the people of Nigeria is the result of overwhelming secret practises. The most obvious are allegations made against private individuals, within and outside of Government, carting away state resources, leading to a state where in spite of long years of enjoying natural resource wealth, Nigeria consistently ranks poorly 5 on human development indices and suffers a large infrastructure d e fi c i t. T h e l e a s t o b v i o u s consequence is the inability to learn from our past mistakes and chart a newer, more accountable dignified course for our future. The n e e d f o r i n c r e a s e d p u b l i c accountability in the security sector is even more urgent in the light of sectarian violence in various parts of Nigeria. The last decade has seen an increasing rise in insurgency in Nigeria. As a result, expenditure in the security sector has also increased. In the same period and w i t h i n c r e a s i n g s e c u r i t y challenges, more citizens groups have requested for information from security sector agencies on various projects undertaken by the security sector. For several of these requests, the response received is that disclosure would affect National Defence ; a legitimate exemption under the Nigerian Freedom of Information Act, However, several challenges have arisen as a result of this stance. The first is this; the notion that disclosure would affect national defence is applied differently by different security sector institutions. Secondly, sometimes non-disclosure is applied to procurement and contracting information publicly accessible in another country--sometimes leading to embarrassment for the Nigerian security apparatus. Lastly, the level of discretion within the security sector has led to high risk of corruption with billions purportedly being carted away. We shall examine these one by one; after which our first recommendation for dealing with this shall be provided. Image 1: Security Sector Budget between 2011 and Nigeria ranks 152 out of 188 countries on the UNDP HDI

3 NON-UNIFORMITY IN THE APPLICATION OF SECTION 11 OF THE FREEDOM OF INFORMATION ACT, 2011 FOI compliance rankings carried out in 2014 and 2015 show that generally, security agencies are the least likely to respond to a request for information. However, for the same category of information (in this case, procurement related records), a few security organizations may provide some details whilst others would not provide any details at all. The basis for refusal, is often Section 11 of the Freedom of Information Act 2011, which provides thus: (1) A public institution may deny an application for any information the disclosure of which may be injurious to the conduct of international affairs and the defence of the Federal Republic of Nigeria (2) Notwithstanding subsection (1), an application for information shall not be denied where the public interest in 6 disclosing the information outweighs whatever injury that disclosure would cause. The disparate responses make it difficult to establish what information would legitimately be viewed as causing substantial harm or injury to national defence. For example, in 2014 and 2015, the Public and Private Development Centre (PPDC) made FOI requests to public institutions including those in the security sector for the following information: 1. The name of each project for which capital warrants were approved 2. The date of payment approval and date release was made on each identified project 3. The amount approved by your MDA after fulfilling procurement procedures 4. The amount utilized by your MDA for each of the listed projects To this request, the Ministry of Defense provided PPDC with both hard and soft copies of the requested information. Similarly, the Nigerian Navy, provided some of the details requested for. In contrast, the Office of the National Security Adviser responded to say that the information requested for is publicly available and the project names and amounts utilized for each relate to the security of the Federal Republic of Nigeria. It is noteworthy that no accounts of public expenditure for ONSA were publicly available and it was unclear how names of projects and amounts utilized could not be disclosed. Additionally, it became unclear what categories of information should be withheld or disclosed within the security sector FOI COMPLIANCE RANKINGS FOR 14 SECURITY SECTOR ORGANISATIONS The ranking is based on an assessment of levels of access to procurement related information from 14 security sector institutions. S/N RANKING NAME OF PUBLIC INSTITUTION Ministry of Defence Nigerian Navy 6 Section 11 Freedom of Information Act, COLOUR CODE National Defence College Office of the National Security Adviser Federal Ministry of Police Affairs Nigerian Defence Headquarters Nigerian Army Headquarters Presidential Committee on Barracks Rehabiliatation (PCBR) Defence Intelligence Agency Defence Headquarters Complex Military Pensions Board Police Pension Department Nigerian Air Force Police Service Commission TO SEE THE FULL RANKINGS VISIT: Proactive Disclosure: Full proactive disclosure Partial proactive disclosure No proactive disclosure OVERALL RANKING 1st 2nd 3rd 4th 5th Responsiveness to Request for information: Response btw 0 & 7 days Response btw 8 & 14 days Response btw 15 days & more No response PRO-ACTIVE DISCLOSURE Image 2: Access to information rankings in the security sector for 2015 RESPONSIVENESS TO REQUEST FOR INFORMATION Level of Disclosure: Full disclosure Partial Disclosure No disclosure LEVEL OF DISCLOSURE

4 WHEN NON-DISCLOSURE IS APPLIED TO CONTRACTING INFORMATION ALREADY PUBLICLY AVAILABLE IN ANOTHER JURISDICTION I n 2014, an agency of the Federal Government, News Agency of Nigeria (NAN), awarded a public relations contract to a US lobbying firm called LEVICK. The contract was worth 1,500,000USD and sought to change the narrative on the Bring Back Our Girls campaign in Nigeria7. On request for details of the contract, disclosure was impliedly denied by NAN on the basis that the contract was domiciled in the office of the National Security Adviser. However, this contract was already made available in the United States and online by virtue of the Foreign Agencies Registration Act (FARA) which requires US persons acting as agents of foreign principals in a political or quasi-political capacity to disclose details of the contractual relationship.8 Applying the Harm rule, the disclosure of this information within Nigeria, could not have been said to have caused a substantial harm to national security if it was already publicly available on the internet.

5 Similarly, Paradigm Initiative of Nigeria, in 2013, requested for information on the supply of the WISE Intelligence Technology System for Intelligence Analysis and Cyber Defence for Nigeria. Whilst the ONSA declined to respond to this request, subsequently, details of this contract were made available online by the Israeli contractor, ELBIT, hired to provide the services. None of these disclosures have been seen to cause injury to the Nation's defence. On the contrary, they have proven to have an embarrassing effect on the security sector, giving the impression that there was something to hide in the requested information. THE INCREASING CORRUPTION RISK IN THE SECURITY SECTOR It is the case that security related contracts are currently excluded from legal scrutiny within frameworks such as 9 the Public Procurement Act, It is therefore, difficult to say how any budget estimates compare with final contract award prices. A further illustration using the WISE intelligence technology procured by the Nigerian government, a comparison of the budget estimate and the actual contract award shows a 20 million Naira difference. Without specific rules applicable to this procurement process, it is difficult to say whether the release of funds was based on the budgeted amounts or the final contract sum; the final contract sum having never been released in Nigeria. Another case in point is the 2.1 Billion Dollar Arms scandal; now popularly known as #DasukiGate. It would seem that the non-requirement of a due process and public accountability mechanism within the security sector, created an enabling environment for alleged fraud and resource embezzlement, all being carried out under the guise of the purchase of special goods. This may have been prevented if there were clear and enforceable rules enabling public accountability. 9 Section 15(2) of the Public Procurement Act 2007.

6 The Former NSA Sambo Dasuki was indicted in a probe which was based on a report of a committee set up to look into arms procurement and military equipment. The former NSA was said to have diverted funds to other avenue and is now facing charges before court and judges in Abuja N170m N400m Jafar Isa Olisa Metuh To buy a house on Mohammed Avenue, Kano for Dasuki Paid into Dextra Investment Limited owned by Metuh N1.4m Acacia Holdings Limited N600m N25m Haliru Bello Mohammed Paid by Dasuki to the company Bam Properties Limited owned by Haliru Bello and his sons N25m Abba Dabo N2.1bn Raymond Dokpesi Money Laundering and other fraud related crime Mahmud Aliyu N750m Received from Olisa Metuh to ght criticism in the traditional and in the social media against former President Goodluck Jonathan. Reliance Referral Hospital Limited N120m N550m Nduka Obiagena Nduka Obiagena Compensation for brutal and unlawful Compensation for seizure of newspapers and stoppage of Boko Haram Attacks circulation by armed soldiers in Abuja in 2012 N350m N9m Blueprint Newspaper N260m Tony Anenih N4.16m Attahiru Bafarawa Attahiru Bafarawa For spiritual prayer purposes N345m Iyorchia Ayu Paid by Dasuki for consultancies on security related and electoral matters. N63m Alhaji Tanko Yakassai and group Received From Tony Anenih for mobilisation and post-election peace advocacy in that part of the country Rasheed Lodoja Accord Party Received From Tony Anenih for peaceful movement during period of campaign, elections and after the elections. Olu Falae Refund RADICAL TRANSPARENCY TO THE PUBLIC WOULD HAVE STOPPED THIS. WE NEED TO DEMAND IT

7 A g ddressin the Challenges For both the curious and the concerned, these illustrations leave much to be desired in terms of public accountability. Unfortunately, several outcries pointing to the inconsistencies in accessing information and the possible corruption risks do not seem to have been given adequate attention. However, this can be addressed now by critically considering a framework for public accountability within the security sector. This framework would be guided by rules for classifying security information. RECOMMENDATION: A SYSTEM FOR CLASSIFYING SECURITY INFORMATION It is publicly accepted that information on national security may be sensitive; in the sense that its disclosure may affect efforts at securing the state; thus causing harm or injury. The Nigerian laws have taken these into account by providing qualified exemptions for disclosing security related information. Recent developments however, have shown that the boundaries of secrecy within the national security sector need to be carefully weighed to ensure that secrecy is not resulting in harm to the Nation. Considering that there may be a need to withhold from disclosure, for a period, certain categories of information and the corresponding need to disclose some other categories of information at given times, all in the interest of improving national security, the applicability of these varied principles is better achieved when the security sector is guided by written rules. These written rules on what information may be accessed or not accessed is what is referred to as a system for classifying security information. This is because national security, like several matters concerning the State, is too grave a matter to be left to personal intuition. CONSIDERATIONS FOR DEVELOPING A SYSTEM FOR CLASSIFYING SECURITY INFORMATION THE LEGAL BASIS FOR INFORMATION DISCLOSURE The premise for disclosure of publicly held information is enshrined in the Nigerian constitution; it is that; (a) sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority; (b) the security and welfare of the people shall be the primary purpose of government: c) and the participation by the people in their government shall be ensured in accordance with 10 the provisions of this Constitution. THE CONSIDERATION OF HARM/INJURY AND PUBLIC INTEREST IN CLASSIFYING INFORMATION Participation is enhanced and made possible through disclosure. It is also recognized that if disclosure would cause injury, then such disclosure may be exempt and the Freedom of Information Act as earlier referred to. To elaborate on the provisions with the FOI Act, 2011, the commencement is that the public is entitled to access publicly held records. However, where it can be shown that such information would cause substantial harm to national security, such information may be exempt from disclosure. In some cases where disclosure can be proven to cause substantial harm to the nation's defense, such harm must outweigh the public interest in disclosure. THE EFFECT OF TIME ON VARIOUS CLASSIFICATIONS OF INFORMATION Information which may be seen as sensitive today, may not be sensitive tomorrow. Thus, rules for classification need to take into account the effect of time on the sensitivity of documents and constantly

8 apply the public interest test to determine whether or not to disclose. CLASSIFICATION RULES SHOULD BE PUBLICLY AVAILABLE An essential aspect of public accountability within the security sector is for classification rules to be publicly accessible from the authorized classification authority. This would ensure that Nigerians have a sense of information that that they are likely to have access to; and those that they may not have access to at any given point in time. This would also help to establish uniformity around disclosure in the security sector and would deter public institutions from unduly withholding information that ought to be disclosed. WHAT A CLASSIFICATION SYSTEM SHOULD INCLUDE It is recommended that a system for classifying information within the security sector should include: A brief rationale for classifying security information A brief explanatory note on the harm/injury and public interest test and how that is being applied to classify security information Guidelines to security sector institutions on what to classify and how Various categories/levels of classification Timelines for revision of classified information Maximum classification period Information that would be proactively available Information that would be available on request etc. In order to establish a robust and balanced framework f o r c l a s s i f y i n g s e c u r i t y i n f o r m a t i o n, i t i s recommended that the Office of the National Security Adviser consider establishing a working group of stakeholders to create a framework/parameters for classification of security information.