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The Supreme Court’s decision on applicability of the FOIA to states 12 Aug 2025

The long-standing debate on whether the Freedom of Information Act 2011 (FOIA or the Act) applies to Nigeria’s 36 states was recently settled by the Supreme Court in a landmark decision. In its definitive pronouncement, the apex court held that the FOIA, enacted by the National Assembly, applies across all tiers of government – including states and local governments. The judgment was delivered on 11 April 2025, in an appeal brought by a group of civil society organisations (CSOs) in Edo State. 

The CSOs had sued the Edo State Agency for the Control of AIDS (EDOSACA) at the High Court, Benin, in February 2014, over the refusal of the agency to release information relating to details of the revenue, expenditure, and subventions of the Edo State Government to the agency. They had also requested information relating to details of the grants and aids from corporate and private donors to the agency as well as other similar information from the years 2011 to 2013. 

The CSOs were successful at the High Court with the High Court, Benin declaring that the EDOSACA was obligated to provide the information pursuant to the FOIA. The court of appeal, in an appeal filed by EDOSACA against the judgment of the High Court, in a 2:1 majority, overturned the decision of the lower court, and held that state agencies are not bound to comply as the FOIA is only applicable to public records and archives of the Nigerian federation and not states. The Supreme Court has now settled the issue in a further appeal to it. 

This judgment, while celebrated by advocates of transparency, rekindles old tensions at the intersection of the division of legislative powers between the federal and state legislatures. Is the decision a welcome consolidation of rights, or does it represent another instance of constitutional overreach? At the core of the issue is the bindingness of laws made by the National Assembly on the states on matters on the concurrent list, i.e., the matters in the Nigerian Constitution whereupon both the National Assembly and State Houses of Assemblies are empowered to make laws.

It is important to provide a little background to the jurisprudential state of play prior to this judgment. Enacted in 2011, the FOIA was designed to promote public access to records and information held by government bodies. Its objectives include enhancing transparency, reducing secrecy in public affairs, and strengthening the accountability of public institutions. 

However, almost immediately after legislative enactment, controversy erupted over whether the Act applied to state governments. Many states declined to recognise its applicability, asserting that the National Assembly lacked the legislative competence to impose such obligations on states. Some states have enacted their own state-level freedom of information laws. For over a decade, the legal community grappled with competing theories – some grounded in the constitutional distribution of legislative powers, others invoking doctrines like federalism and “covering the field.”

The nature of Nigeria’s federalism has frequently come under judicial scrutiny, particularly in matters touching on constitutional allocation of powers, resource control, and fiscal federalism. At the centre of many of these disputes lies the tension between the centralising impulse of federal legislation and the constitutional autonomy of the states. Two decisions, in particular, offer a prism through which to examine how Nigeria’s Supreme Court has grappled with this tension: Attorney General of Ondo State v Attorney General of the Federation and Attorney General of Abia State v Attorney General of the Federation. Both cases dealt with federal legislation that reached into the domain of state affairs – but they led to different conclusions, illustrating the nuanced and evolving interpretation of the character of Nigeria’s federalism.

In AG Ondo v AG Federation, the Supreme Court was asked to determine the constitutionality of the Corrupt Practices and Other Related Offences Act, 2000 (commonly known as the ICPC Act). The legislation empowered the Independent Corrupt Practices Commission (ICPC) to operate nationwide, including establishing branch offices and appointing anti-corruption commissioners in each state. The Ondo State Government challenged this as a breach of state autonomy. The Court, in a lead judgment delivered by Chief Justice Mohammed Uwais, who was the Chief Justice of Nigeria at the time, upheld the Act’s validity. While acknowledging that it impinged on the principle of federalism – particularly the autonomy of state governments – the Court held that such impingement was authorised by the Constitution itself. 

In other words, the infringement was not unconstitutional, simply because it disrupted ideal federal arrangements. What mattered was whether the federal legislature acted within its constitutional powers. The Court stated: “If this is a breach of federalism, then... it is the Constitution that makes provisions that have facilitated breach of the principles.”

This was a striking admission: that the Nigerian federalism is shaped not by political theory but by constitutional text. Where that text permits centralisation – however discomforting to federal purists – the courts are bound to give effect to it. This theme would be taken up again, perhaps even more explicitly, in the subsequent case of Olafisoye v Federal Republic of Nigeria, where Niki Tobi JSC cautioned against the temptation to impose abstract ideals on the Nigerian Constitution. 

As Justice Tobi eloquently put it: “… there is not much in a name, but there is so much in a name by way of definitions, amplifications, restrictions and all that. Constitutions are named as federal, unitary and confederal, to mention the major ones. A federal government will mean what the constitution writers say it means. And this can be procured within the four walls of the constitution and the four walls only. Therefore, a general definition of federalism or federal government may not be the answer to the peculiar provisions of a nation's constitution which is the fons et origo of its legal system. Ideal federalism or true federalism is different from specific or individual federal constitutions of nations, which may not be able to achieve the utopia of that ideal federalism or true federalism but which in their own sphere are called federal constitutions. I think Nigeria falls into the latter category or group. It will therefore be wrong to propagate theories based on ideal or true federalism in a nation's Constitution which does not admit such utopia.”

The pendulum swung in the opposite direction three years later in AG Abia v AG Federation, when the Court reviewed the Monitoring of Revenue Allocation to Local Governments Act, 2005. The Act sought to establish joint allocation committees in all states and mandated oversight by federal officers. The Attorneys General of Abia, Lagos and Delta states brought a consolidated challenge, arguing that the legislation usurped state powers and disrupted the delicate constitutional balance. 

This time, the Supreme Court agreed. In a decision that leaned heavily into the structural values of federalism, the Court struck down the Act, describing the federal government’s “monitoring” function as an overreach. Niki Tobi JSC again delivered the lead judgment, but the tone was markedly different from Olafisoye’s case. Here, the Court emphasised the autonomy of state governments and their right to administer their affairs without intrusion. Federalism, the Court reminded us, means something – it is not mere form: “The autonomy of each government… is essential to the Federal arrangement. Therefore, each government exists not as an appendage of another government but as an autonomous entity… free from direction by another government.”

At first glance, AG Ondo and AG Abia might appear doctrinally inconsistent. In one, the Court upholds a federal statute with national application; in the other, it invalidates one on grounds of federal overreach. But the key to reconciling these decisions lies in understanding their respective constitutional foundations. In AG Ondo, the ICPC Act addressed corruption – a matter clearly within the legislative competence of both the federal and state governments. The Court found sufficient constitutional authority to support the Act’s national application. 

In contrast, AG Abia dealt with a federal attempt to prescribe state-level structures for revenue administration – an area firmly within state legislative authority. It is, thus, clear that the Supreme Court has not endorsed a centralisation doctrine. Rather, it has consistently applied the principle that federal laws must be justified by express constitutional authority. Where that authority exists – as in the case of fighting corruption and now ensuring access to information from government entities – nationwide application is permissible. Where it does not – particularly in matters of state administration – federal incursion will not be tolerated.

The Supreme Court’s recent affirmation of the FOIA as applicable to all levels of government must be understood within this context. Critics of the decision argue that the FOIA imposes administrative obligations on state institutions without their consent and, therefore, violates federalist principles. But the Court has taken a more nuanced view – one that is consistent with its earlier decision in AG Ondo.

The FOIA, just like the ICPC Act considered in AG Ondo’s case, gives effect to fundamental constitutional objectives such as transparency, accountability, and good governance – principles enshrined in Chapter II of the Constitution – Fundamental Objectives and Directive Principles of State Policy (FODPSP) – and within the legislative remit of the National Assembly under Item 60(a) of the Exclusive Legislative List. In this sense, the FOIA, like the ICPC Act, draws legitimacy from a shared national imperative. 

In a prescient and well researched article titled, “Wrangling Over the Applicability of the Freedom of Information Act to the Federating States in Nigeria: Much Ado About Nothing?” (2013), Victor Ayeni noted, the FOIA gives effect to section 22 of the Constitution, which mandates the press and mass media to hold government accountable, and section 14(2)(c), which situates sovereignty in the people and requires participatory governance. These are not empty aspirations. In Ayeni’s words, “whenever it is shown that the National Assembly exercises its law-making mandate over any provisions of the FODPSP, it follows almost always that a law made under such arrangement will have country-wide application.”

Indeed, federalism in Nigeria is not a straightjacket but a framework of cooperative governance. The FOIA, as a vehicle of transparency, is arguably as essential in the states as it is at the centre. Central to the Supreme Court’s decision is the constitutional doctrine of “covering the field.” This principle, which holds that federal legislation can render inconsistent state laws inoperative, played a determinative role in resolving the FOIA dispute. The Court held that once the National Assembly has legislated on a matter within its competence and intends to cover the field, any state law that contradicts it becomes inoperative, even if not void. 

This doctrine does not require express language – intent may be implied from the scope, structure, and objectives of the legislation. Notably, the FOIA contains no express clause stating it applies to states. However, its provisions refer broadly to “public institutions,” defined to include any government body, and repeatedly use non-restrictive terms such as “any person” and “any part of the Federation.” As Ayeni states these elements “manifest an intention to achieve national application.”

The Supreme Court’s judgment carries far-reaching implications for governance at all levels. First, it removes any doubt as to whether state-owned public institutions are subject to information requests under the FOIA. This means that citizens in every Nigerian state can now demand access to government records and data.

Second, it raises the bar for state governments. Many had used legal uncertainty as a pretext to deny FOI requests or avoid reporting obligations. That shield no longer exists. While some states (such as Ekiti and Lagos) had passed their own FOI laws, these often differ in scope and ambition, leading to patchworks of protections. Uniformity, as now affirmed, enhances legal certainty and encourages a level playing field.

Third, the judgment represents a constitutional commitment to open government. In a country plagued by opacity, corruption, and administrative silence, the FOIA is a vital tool in the democratic arsenal. Its enforceability at all levels is a victory for civic empowerment. The Supreme Court’s affirmation of the FOIA’s applicability to all tiers of government is, therefore, more than a legal resolution; it is a cultural signal. It affirms that access to information is not a federal privilege but a national right. 

Nigeria’s democracy cannot thrive without informed citizens. And citizens cannot be informed without access to information. The FOIA, now constitutionally unshackled, is a vital step towards bridging that gap.

Funmilayo Odude is Partner at Commercial and Energy Law Practice (CANDELP).