PUBLIC SERVICE LECTURE HELD AT EKITI STATE

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INTRODUCTION

I have been invited as a Law teacher to deliver a lecture on the ‘OFFICIAL SECRETS Act-Implication on Ekiti State Public Service". I have not been invited as a Pastor, a Journalist, a Politician, a traditionalist or as a Philosopher. Be that as it may, it is crystal clear that LAW cannot operate in a vacuum without attracting some context of situation. The title of this lecture, which is presumably a legal issue, is a magnet that cannot ignore the aforementioned areas. Amos, while replying Amaziah on a false allegation made against him that his prophecy concerning Israel amounted to treason against the government, replied as follows:

"I was never a prophet not the son of a prophet, but, I was a shepherd and a peasant gathering fruits from fig trees. I only responded to the divine command to go and prophesy to the people of  Isreal…."

Now, that l have to deliver this lectures as a law lecturer, it becomes imperative to let the audience appreciate the foundation of Law.

It is a notorious maxim that" obedience is the first order in heaven". This shows clearly that Law is an instrument for maintaining Order and Scholars of Jurisprudence have defined Law to be a command of the sovereign. From the biblical account of mankind , the first law made to regulate the life of man was promulgated in the garden of Eden. The serpent and Eve conspired to breach the Law whilst Adam was found to be an accomplice and they were all punished. The offence of divulging official secret may be committed by one or more than two persons depending upon the circumstances of each case. Apart from the first Law in the garden of Eden, the ten commandments brought by Moses from Mount Synai to regulate the activities of the Israelites is equally a divine source of the rule of law. It is pertinent to note that this discourse will examine the topic from its foundation, its operations from the tradition,, biblical, criminal law, administrative law, constitutional law and political perspectives.

In a nutshell, certain concepts in the provisions of the Official secret s Act require appraisal with a view to reconciling the provisions with the relevant authorities for a better understanding of the extent and limitations of the operations of the Act. The actual offenders as well as innocent victims and the mode of prosecution will be highlighted. The concluding part will itemize the deficiencies inherent in the Act and alternative strategies to settle any conflict arising from divulging official secret-without witch-hunting or bastardizing the principles of natural justice.

ORIGINAL OF OFFICIAL SECRETS LAW

In the traditional system of government comprising of the oba-in-council, the subordinate chiefs and the war chiefs, there were checks and balances for purpose of maintaining effective control of the community which are not now on equal footing as they were used to be because of our pollution of culture through western education, religion and modern politics. Be that as it may, each of the Yoruba communities has a replica of what is know today as official secret. On a serious note, the secrecy so maintained under the traditional government was in the past purely for the security of the community unlike the security of the ruling class in our contemporary Nigeria.

It is deemed sacrilegious in the traditional setting to divulge the secret of the traditional government or of the Community. The offender would pay dearly for it. Though, the trials of such offenders traditionally are shrouded in secrecy, and any chief found guilty of the offence could have his title withdrawn rusticated for a period or asked t pay traditional fines to appease the gods of the land. If the offender were the Oba of the Community, he could be asked to open the calabash or to go on voluntary exile.

On the other hand, before the emergence of Man on earth, the bible projects a picture of a divine government with absolute control of the universe. We were told that when God was about to create Adam, he consulted the members of His government and said.

"Let us make man in our own image and after our likeness"

The use of the phrase" let us" in that context connotes that He was not alone. He had His own members of the executive whose secrets are unknown to Man. We were further told of the twenty-four council of Elders surrounding the Divine Throne. The Secret of the existence of this divine executive and their mechanism for controlling the universe are unknown to us. However, Lucifer, with the picture of a serpent divulged the official secret of the Divine Authorities to Eve in the Garden of Eden by telling the woman that "you are not going to die if you eat the fruit but you would be able to differentiate what is good from what is bad." Lucifer was not only expelled from heaven but was cursed. Adam and Eve as accomplices were also expelled from the Garden of Eden and cursed.

On the physical arrival of Jesus Christ on earth, he had several followers like the present political parties surrounding their leaders. The members of his own executive were three members of the Inner Circle, Peter, James and John who followed Him to Gethsemane when the D-Day was approaching. Judas Iscariot had been convicted before he openly divulged the Official Secret. However, he served the punishment after the commission without judicial trial. He was sentenced to death by the court of his own conscience.

Inquisitive minds may be wondering why this man has come to preach instead of telling us what the Official Secret Act is all about. I will apply Socratic method to answer your silent question which you have not asked me openly by asking you the following questions in aid of our understanding of the operations of this Act after this lecture.

whilst the fifth question will now be briefly disposed of. Jess Christ told the apostles at the venue of the last supper that every one of them would deny Him before dawn. Even, Peter who sat was known to be iron hearted amongst the apostles denied him before the cocks continued to crow. This is by implication saying that no Public Officer is entirely free fro the clutch of this Act. Moreover, Christ further said that anything done in Secret shall be revealed openly willy-nilly. The justification for this spiritual assertion as it relates to public Officers is that Man is a gregarious being. As long as there are social and political interactions at different quarters and times to review policy decisions by think-tanks and the negative utterances of the political class, nobody is absolutely free from violating the provisions of the Act either intentionally or by implication.

THE PROVISIONS OF THE OFFICIAL SECRETS ACT AT A GLANCE

Before setting out the provisions from the various statutes on this subject-matter including the supporting provisions in the 1999 Nigerian Constitution, it is worthy of note that it is not intended here to go on a voyage of exploration into English Official Secrets Act, which may not be considered along with other statutes of general application statutorily imported into the Nigerian Legal System. The Official Secrets Ordinance was introduced by the colonial administration when the Criminal Code Act was enacted in 1916, two years after the amalgamation of the colony of Lagos with the Northern and Southern Protectorates now known as Nigeria. The rationale behind the inclusion of the Official Secrets Act in the Criminal Code and the law of sedition was to incapacitate the few Nigerian educated elites from probing into the affairs of the colonial administrators.

For the purposes of clarity, Section 97 (1) (2) and (3) of the Criminal Code Act, of 1916 are set down below:-

Section 97 (1) provides:

3. A prosecution for either offence cannot be commenced except by

of Nigeria in its Criminal Code (Amendment) Law of 1958 to include an offender not employed in the Public Service, who is in possession of any official document marked "Secret". This so called improvement on the Criminal Code Act is again restricted to any official document expressly marked "Secret". It appears that however highly confidential the document is, if has not been marked "Secret" an employee or non-employee of the public service may not be guilty of the offence. However, the Criminal Code Act seems to make only any person employed in the public service guilty of the offence.

The current Official Secrets Act has not repealed the 1920, 1958 and 1962 enactments on the subject-matter in entirety. Nevertheless, it has made tremendous improvements on them. It expressly provides for the maximum security of defence locations in Nigeria. The Official Secrets Act, Cap. 03 of 2004 have ten sections with penal provisions, modes of extracting relevant information, protection of specific areas, methods of investigation and procedure for instituting an action against an offender under the Act.

Section 1 of this Act talks of protection of official information. Unlike Section 97 (1) of the Criminal Code Act, the current Act on Official Secrets does not primarity direct its attention to any person employed in the public service. Moreover, it does not restrict its operations to facts within the knowledge of an employee by virtue of his duty. Instead, section (1) of the Act provides that"-

"a person who…………..

the Act, unlike the position under the Official Secrets (Amendment) Law of the Eastern States where the document containing the official secret must be expressly marked "Secret". Unlike the position under the Criminal Code Act vis-à-vis the 1958 and 1962 Official Secrets Act where the offender must be a person employed in the public service officer who transmits, obtains, or reproduces the classified matter on behalf of government. This presumption is rebuttable in exceptional circumstances.

Section 2 (1) of the Act relates to the protection of defence establishment. It provides that any person who for any purpose prejudicial to the Security of Nigeria-

2. That, unless the contrary is proved, a person so charged with the aforementioned offences shall be deemed to have acted in a manner prejudicial to the security of Nigeria.

Section 3 of the Act relates to the period of emergency within the meaning of section 305 of the 1999, Nigerian constitution during which the stated acts in Section 2(1)(a)-(d) shall equally be prohibited except with the written permission of the President.

Section 4 of this Act empowers the appropriate Minister to make Regulations for bringing the provisions of this Act into effect and prescribing penalties for non-compliance with any of the Regulations. However, the Regulations shall not become operative unless with the approval of the two Houses of the National Assembly.

Section 5 deals with the power of the Nigeria Police not below the rank of an Assistant Commissioner of Police to require information on a reasonable suspicious that an offence under section 1, 2 or 3 have been, or is about the be committed. The Police may act swiftly to apprehend the offender where it is reasonably believed that the consent of the appropriate officer to issue a search warrant would seriously prejudice the security of Nigeria. Any person who fails to comply with a requisition under section 5(1), or furnishes false information shall be guilty of an offence. Section 6 of the Act without further assurance relates to the power of a police officer not below the rank of Assistant Commissioner of police to issue a search warrant to search and retrieve the classified matter, the subject-matter of the offence wherever kept or from a protected place for purposes of using it in evidence by the prosecution. A reasonable force may be used to enter any place where the classified matter is suspected to have been kept.

Section 7 of the Act relates to the penalties and legal proceedings for the trial of any person who violates the provisions of Section 1,2 and 3 of the Act. The punishments prescribed for the offences range from two years to fourteen years imprisonment or fine. An offence under the Act may be a misdemeanour or indictable depending upon the circumstances of each case. An offender may be detained during his trial.

Section 8 provides without prejudice to any other provisions under this Act for the trial on an attempt to commit any of the offences; or to proceed on any person who aids, abets, counsels, incites or commands another to commit an offence under this Act. A person who becomes an accessory before and after the fact in such an offence or conceals or procures committed can be tried as a principal offender. Section 8(2) makes the offender who is a Nigerian, who commits the offence outside Nigeria Triable in Nigeria as if such an offence has been committed in Nigeria.

Section 9 if the interpretation section which defined concepts like: ‘classified matter, government, protected place and public officer". In examining the definitions of the concepts herein stated, the relevant provisions of the 1999, Nigerian Constitution will be called in aid particularly to appreciate who a public officer is and what is expected of such an officer.

"Classified matter" has been defined as any information or think which under any system of security, classification from time to time, in use by or by any branch of the government is not to be disclosed to the public and of which the disclosure to the public would be prejudicial to the security Nigeria. It is pertinent to note that the phrase" any information or thing used in this interpretation section is not restricted to a document in order to qualify as classified matter.

Defining "government", here as Government of the Federation without qualification or further explanation is too narrow a definition in the light of the three tiers of governments in Nigeria, though it is a federal enactment but the constitutional definition of a "public officer" will not be agreeable to that narrow definition of government.

A "protected place, under the Act has been defined to include "any Naval, Military or, Air Force establishment in Nigeria, any other place in Nigeria used for or in connection with the production, storage or testing or on behalf of the government, or equipment designed or adapted for use for defence purposes, and any other building, structure or work in Nigeria of by government for defence purposes. It also includes an area in Nigeria or elsewhere designed by the Minister’s Order as being an area from which the public should be excluded in the interest of the Security of Nigeria. It should be noted that the word "elsewhere" other than Nigeria cannot be by the Order of the Minister in Nigeria even by the Order of the Head of State without the consent of the authorities of the other nation where such protected place may be situated.

"Public Officer" in the context of this Official Secrets Act, is defined as "a person who exercises or formerly exercised for the purposes of the government, the functions of any office or employment under the State. This definition of a public officer by the Act has not shown the category of persons who are public officers. We shall in the light of that make a voyage of exploration into the Constitution of Conduct of Public Officers¹⁰. there is no longer any discrimination between a public officer and a civil servant as shown in the case of Obiefuna v Okoye¹¹ Fasoro v Milbourne¹² and Momoh v Okewale and Lagos City Council¹³.

Whereas, in the past, a civil servant was defined as a person employed by the Civil Servant Commission of the Federal or of the unit State which did not include employees of the Local Government, 14 Judiciary, police, and the Armed Forces. It did not include teachers, or the staff of all tertiary institutions. The 1999 Constitution has brought all the aforementioned officers under the big and all embracing umbrella as public officers which now include, the President, his Vice, the Senate President, the Speaker of the House of Representatives, his Deputy, the Speaker of the State House of Assembly, the State Governor and his Deputy, Judicial officers, Ambassadors and High Commissioners, Council Chairman, Chairman and members of Boards or Governing bodies and staff of statutory corporations and of companies in which the Federal or State Government has controlling interest.

The Constitution, ordinarily does not say anything expressly about "official secrets", but paragraph 1, Part I of the fifth schedule to the Constitution provides; "A public officer shall not put himself in a position where his personal interest conflict with his duties and responsibilities". If the aforementioned officers for purposes of the Code of Conduct of public officers are classified as public officers and it is the duty of every public officers to keep the secret of the government secret of the government secret, is there any of the provisions of the Official Secrets Act that discriminates or so selective as to the category of public officers that can be guilty of divulging official secret? And, who are the sacred cows?

More often than not, the successive governments and their agencies are carelessly taking shelter under a leaking roof with the bogus claim that all the security outfit have tightened their belt when they have actually created a state of insecurity for themselves. Some of the operative areas of the Act include:-

One thing that is common to the provisions of the official secrets Act in the various statutes is that prosecution cannot commence without the consent of a Law Officer who may either be the Attorney-General or the Director of Public Prosecutions. The rationale behind that is that official

Secret is a sensitive issue that mere allegation without thorough scrutiny and legal backing before prosecution commences may be an ill wind blowing no good .This is in line with the legal maxim which says that, "it is better for ninety-nine culprits to go unpunished than for one innocent person to be punished without legal justification"

Save the immunity clause inserted in the Constitution which does not allow the president, his Vice, the Governor and his Deputy to be prosecuted in their tenure of office, everybody who by virtue of his official duty is public officer is triable under the official Secrets Act. Judicial officers do not have such immunity but they enjoy absolute privilege in the performance of their judicial functions.

This will lead us to the nature of Evidence to be given while facing trial in the circumstances that may blow open certain official secrets when the affected individual having knowledge of privileged information or document may urge the court to compel his adversary to produce such document to classified.

For example, a public officer who is alleged to have inflated a contract awarded by his department who is sure of what transpired at the Tender’s Board via the directive of a superior officer beyond his power may call his adversary for the record of Tender’s Board on such account. If for any reason the agent of government claims that the classified matter or document sought to be produced comes under state privilege ,15 the court has a discretion to compel the production of such document or otherwise, by virtue of section 220(1) of the Evidence Act. One thing that has never been controverted empirically is that life is but a stage , when the curtain is drawn and another stage is set ,the same document can still be used against the officer who sought to with-hold the production of such document to the detriment of the officer who has been wrongfully charged with an offence.16

Since the interest of justice is expected to be paramount in the minds of judges to prevent anarchy and chaos, and court is true today) in the light of non-disclosure of material evidence, courts have these days refused to follow the absolute state privilege laid down in Duncan v Cammel Lard.17 in subsequent cases. For example, in Conway V Rimmer & Anor18.Lord Reid tried hard to distinguish two kinds of public interest as follows;-

"it is universally recognized that there are two kinds of

Public interest that harm shall not be done to the nation, or

the public interest by disclosure of certain documents, and

there is the public interest that the administration of justice

shall not be frustrated by with –holding of documents which

must be produced if justice is to be done. There are many cases in which the nature of the injury would or might be done to the nation or the public service is of so grave a character that no other interest can be allowed to prevail over it"

the salient point here is whether public interest can be serviced where justice sinks into oblivion because we are in the animal farm. However, in Apampa v Balogun19 the documents sought to be excluded on ground of state interest consisted of a file of local Government relating to the appointment of chief and the minutes of certain meetings held on the matter .Hon. justice Aguda in his Ruling on an application to exclude the documents held that having regarded to the nature of the documents sought to be excluded, the claim to privilege was not well founded.

Another complex area regarding the disclosure of official seceet relates to the offence of sediton20 which the Colonial government enjoyed to the detriment of Nigerians and which unfortunately, successive governments in Nigeria have bought who sale to imprison the conscience of the elites who could periodically call the government to order. This offence has become a political weapon the hands of the successive governments with a view to protecting the interest of the ruling class rather than public interest. The mischief inherent in this law of sedition is that "Truth is not defence "20,Can we therefore say that a government of the people must have the truth and like dishonesty because of secret dealings? This to silence t he media and keep the public in the dark.

OFFICIAL SECRETS ACT Versus FUNDAMENTAL RIGTHS

Section 36(1)of the 1999 constitution of the Federal Republic of Nigeria provides:-

Three vital elements are worthy of note in the above provision,

Implication. There is no good cause for making civil servants the sacrificial lambs as if the other public officers are Saints.

Judicial officers constitute a separate class of public officers that can condemn in entirety what has been done or omitted to be done by either the Federal or the State Government. A justice in the Court of Appeal or in the Supreme Court may write a minority or dissenting judgment with or without due regard for any evidence regards as classified matter. The court has the power to compel the production of any document even if it is certified as a privileged document, though the judge may examine such document in-camera. The court may decide to conduct the trial in private as a constitutional exception to public trial for purposes of State Security. In Robinson v The State of South Australia. The State Government assumed the function of acquiring and marketing all the wheat grown in the State and distributing the proceeds to the growers. Actions were brought against the government for mishandling the business. The aggrieved parties sought to tender certain documents to establish the government’s impropriety. The government’s agent raised the issue of state privilege concerning the documents which was upheld by the courts below. On appeal, the Privy Council set the decision of the two Lower courts aside and restated the inherent power of the court to inspect the documents in order to see whether the claim for privilege was justified or not. In Queen v Administrator of Western Nigeria, Ex-part Bangbelu, and application for an order of certiorari was brought to quash the Governor’s approval of the appointment of a Chief against an earlier appointment made by the kingmakers to the same office which has not been set aside by the Governor-in-council. The applicant required the production of certain documents of the earlier appointment. The Minister objected to the tendering of the documents and the court over-ruled his objection to the tendering of the documents. For example, in the Law of Sedition referred to in this paper earlier on, the Court of Appeal had reviewed the current position in Arthur Nwankwo v The State and said obiter that "Nigerians were no longer angry mobs which the Colonial Administrators thought us to be". If anybody holds himself to be capable of ruling the public, the same person must submit himself to the people to take his administrative and political X-Ray.

It follows therefore that where a public officer is charged with a particular offence relating to his schedule of duty and he is denied the opportunity to produce any document that will support his defence, the prosecution cannot be said to have proved his case beyond reasonable doubt. Even if upon production, the officer is privately tried, and convicted, public interest could not be deemed to have been served. Where an officer is denied promotion because of an adverse report of a senior officer in a confidential file not made available to him for comment, or awareness, or where the officer is unlawfully dismissed because of such adverse report and he is denied the opportunity t produce the document, that will be nothing short of applying the law of the jungle.

With all sense of humility, the use of the word "secret" to describe the acts of government expected to be serving public interest tends to be a negation of democratic norms. It is my humble submission that the title of the Act ought to be reframed to read Official (Confidential Information) Act. What informed this lecturer to think that Official Secrets Act is a misnomer emanates from this simple but complex question. Is the government of the people a replica of a secret cult? Whether secrecy is required in governance or otherwise is a food for thought. Nigerians colonial mentality in buying European policies wholesale without due regard or consideration or our socio-cultural background is another thing. For better understanding, let us first and foremost examine the issue of secrecy in governance from the perspective of traditional government before appraising similar position under the modern government.

It is common knowledge for large groups like churches, mosques, age groups, conference, conventions and unions to have committees to discuss confidential matters at committee stage. The Oba-in-council may invite interest groups in a community to deliberate on burning issues affecting the community and to call for suggestions. At the stage of formulating any policy on the general debate by the interest group, the oba-in-council will take over being guided by strict rules of confidentiality. In those days, whoever divulged the secret of the council might pay dearly for it, which may include suspension or expulsion. The secrecy in that context is informed by the maxim that it is untraditional to see the bare head of an elder.

With the traditional background, there is nothing to show that the modern government has introduced anything new except that the scope of operations of the modern government is wider to require a lot of diplomacy and confidentiality at the Local, State, National and International levels. There is generally a misconception of what constitutes, State in security which the official Secrets Act intends to prevent. Since the Act talks of classified matter, does it mean that the offence of divulging official secret cannot be committed unless the information transmitted is extracted from official document? Can the penalty for the offence be extended to a foreigner with or without ordinarily being resident in Nigeria?

The first question can be considered under section 2 of the official Secrets Act, Cap. 03 of 2004, which relates to the protection of the defence establishments vis-avis, the offence of incitement to violence under the criminal code. Section 2 of the aforementioned Act as earlier stated makes it punishable for "a person who for any purpose prejudicial to the security of Nigeria:-

2(1)(a) enters or is in the vicinity of, or inspects a protected place; or

(c) obstructs, misleads or otherwise interferes with a person engaged in guarding a

protected place…..

In a nutshell, paragraphs (a) and (c) of the Act and the offence of incitement to violence under the criminal code answer the first question affirmatively that divulging official secret is not restricted to information contained in a document. Section 8 of the official Secrets Act offers better explanation to show that leaking official secret does not require exclusively information extracted from documents.

Section 8 makes a person who attempts to divulge official secret as well as aiding, abetting, counseling, inciting, procuring, or commanding the commission of such offence guilty. An accessory before or after the fact to such offence; or a person who conceals or procures the concealment of such offence committed to his knowledge shall also be guilty of the offence. It follows that if a person who h as not actually committed the offence can be guilty of the offence, it will not be correct to say that a person cannot be guilty of divulging official secret unless the information disclosed is extracted from an official document. Moreover, military establishments require top secret in the interest of maximum security of the nation.

The second question as to whether a foreigner living in or outside Nigeria can be charged with a offence under the Official Secrets Act can be addressed under section 4 and 8(2) of the Act. The section relates to the power of the Minister to make regulations to control the confidentiality of mails, or correspondences, telegrams, packages or other matter for delivery, particularly mails relating to Official matters. With this provision, it is presumed that where there is conspiracy between a Nigerian and a foreigner to commit an offence under the Act, the foreigner may also be tried like a Nigerian if there is a reciprocal enforcement of judgement between Nigerian and such foreigner’s country or his domicile. Moreover, the starting phrase of each section or paragraph of the Act i.e "a person" which includes natural person or a body corporate may not exclude a foreigner. It can only exclude the president, his Vice, the government and his deputy by virtue of Section 308 of the 1999, Nigerian Constitution. It is worthy of note that the Official Secrets Act is a Federal Law. Nevertheless, Section 10(5) of the Act empowers a State Legislature to make Laws with respect to the safety, protection and security of the unit State of the Federation as long as such State law is not inconsistent with the provisions of the Act. It is hereby submitted that secrecy in governance is a necessary factor in taking policy decisions as long as the interest of justice is to be preserved and public interest is not sacrificed before the altar of the ruling class, who are infinitesimal to the number of the actual public.

MISCHIEF INHERENT IN THE ENFORCEMENT OF THE ACT.

The enforcement of the provisions of the official Secrets Act is double-edged sword in the sense that it can be used to punish an innocent agent and make the actual offender go Scot free. On the other hand, it may create an atmosphere of acrimony where it is observed that a person charged with such offence would blow open the said secret if he were to be tried in the open court and secret trial in the circumstance would trigger public resentiment, seeing that justice has not been done.

Secondly, similar offence under the criminal code and theprevious Federal Laws on the same subject matter talked about "any person employed in the public service as the primary offender. The Official Secrets Act, cap 03 of 2004 has not expressly provided for a person employed in the public service or a person who is in possession of a classified matter by virtue of his official duty. Since this latter Act contains no express provision concerning a person employed in the public service and Ekiti State has not enacted any Official Secrets law of her own, the State by implication remains a parasite, adopting wither the Federal Law or the Ondo State Laws as applicable to Ekiti State. Moreover, the Act is double-edge sword because the complainant today may be the victim tomorrow. It is common knowledge the "no condition is permanent".

Section 5 of the Act confers a blanket power on the police to search, impound any classified matter found in possession of a suspect, arrest when necessary by applying a reasonable force (reasonableness of police force is in doubt) and to detain the suspect. Since the organ in the centre of Law enforcement is the police, one may not seriously query the wisdom of the Federal Legislature to have through legislation conferred such blanket power on the police without reservation. It can be asserted without mincing words that the police as an institution is the pant and singlet of any government. Neither coat, agbada, wrapper or any kind of dress can see the nakedness of its owner than his underwear. How are we sure that the police like any other agents of government cannot divulge the secrets of government. If they do, who will arrest them? If by accident or design, a police officer is arrested and prosecuted, are we not expecting more revelation of the Official Secrets while defending himself? Will the interest of justice be served if he is disallowed to produce what would aid his defence during his trial? The relevance of the Police Act to finance him can only be plausible when his personal liberty is not at stake.

The defences open to any person accused of an offence under Section 1 of the Act, include:-

From the defences set out above as contained in Section 1 of the said Act, two fundamental issues come up as food for thought. Firstly, the provisions controvert clearly the maxim that "ignorance of law is no excuse", which lay-men in high offices are using as a weapon against their adversaries or their subordinates is not a rule of general application in all cases. There may be instances when ignorance of law may negative "intent", or may serve as a rebuttable presumption that the accused did not intend to commit the offence in question. The Act says that the accused will not be liable if he did not know and that there is no reasonable expectation to make him believe the thing to be a classified matter.

Secondly, that when the accused became aware that the matter was a classified matter, he reported to the police of his awareness, looks fine on paper with several obstacles in practical application of the law, regard being had to the peculiarities inherent in conducting investigation by the police. Administrative tribunals may conduct inquiries and take decisions in violation of the principles of natural justice, which may warrant the aggrieved party to challenge the decision of the tribunal in court. Even if the law empowering the Minister or Commissioner to set up a tribunal and that the decision of the tribunal, Commissioner or Minister on such matter confers such power on the tribunal cannot lawfully oust the jurisdiction of court. The court of law cannot be taken for a ride; otherwise a state of anarchy will be created. It is difficult to anticipate the existence of a government that has nothing to do with the rule of law. Any law enacted to oust the jurisdiction of court will be ultra vires the Constitution.

In the area of the law of evidence, it is now clear that notwithstanding that a government agent can apply to prevent a classified matter from being produced or tendered in evidence, the court can compel the production of such document or the classified matter in the interest of justice. In case an accused facing criminal trial is denied the opportunity of tendering such document in aid of his defence, the prosecution would not be deemed to have proved his case beyond reasonable doubt. For example, in a case of sedition where a journalist or a public officer whose duty it is to extract information is involved, the confidentiality of the source of such information should be maintained, otherwise avenue open to government to get necessary information will be blocked.

In all other civil causes or matter where State privilege can be claimed, such privilege is not absolute to avoid a flagrant violation of the principles of natural justice. Be that as it may, there is no absolute freedom in human institutions without checks and balances. Generally, public interest is to prevail over private interest. However, public interest ought to be a genuine interest, not the remote interest of the ruling class and the public interest so claimed must serve the interest of justice except during any period of emergency, which is an aberration to normal governance. Ouster clauses preventing judicial intervention should be discouraged being unconstitutional. Since the definition of Public Officer is now wide, civil servants should not be made scapegoats under the Official Secrets Act. Kicking against vesting such power in the police is a futile exercise but with a caveat concerning the negative impact of the nefarious activities of some of our Law enforcement agent in our contemporary Nigeria. There is no proof that a law enforcement agent cannot divulge Official Secret. Another area where the interest of an innocent agent in the Public Service as well as the general public can be jeopardized could be well observed whenever a State of emergency is declared by the president. Innocent Public Officers or ordinary members of the Public may be implicated under the Act since fundamental rights provisions of the Constitution are hardly adhered to during such period.

Having reviewed the probable areas covered by the Official Secrets Act, it s foundation, the need for secrecy in government and the necessary evils, its application, enforcement, public interest and the interest of justice naturally and constitutionally, it can now be appreciated that he adoption of the Law by the Nigerian successive governments from the colonial administration is not a new innovation but a spill-over from the traditional system of government which in turn inherited same from the divine order for universal order and peace. It is also appreciated that unlike the general notion that ignorance of law is not a defence, knowledge of the official secret is of essence to determine the liability or innocence of any suspect or accused under the official secrets Act. Finally, since the Constitutional being the grundnorm does not discriminate between a public officer and a civil servant, making civil servants the sacrificial lambs under the official secrets Act should be discouraged.

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