Law News
Digital Surveillance and Privacy: The uncharted Path Under Nigerian Law

Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you super-add the tendency or the certainty of corruption by authority. There is no worse heresy, than, that the office sanctifies the holder of it”.

Notwithstanding the lon-gevity of the statement, Nigeria’s history validates the statement. Nigeria has a country with a chequered history of military rule has experienced the coercive force of state power, which was exercised through various security agencies and the military.

A predominant feature of this orchestrated oppression during the various interjection of military rule in Nigeria is the state surveillance of Nigerians. However, with the return to democracy, mass state surveillance has been checked by the Constitution, by separating powers between different arms of government.

Nigeria’s constitution not only separates power between the various arms but also empowers government with the authority to administer the country for the well-being of Nigerians. These constitutional powers are nevertheless subject to various limitations include the observance of the fundamental right of citizens, such rights are inclusive of the right to a private and family life.

The constitutional power of the various arm of government is enshrined in Chapter II of the Constitution of the Federal Republic of Nigeria (CFRN) 1999, specifically in Sec. 5(1)(a) CFRN 1999,  which provides that the executive powers of the Nigerian Federation shall be vested in the President and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and further requires by the provision of Sec. 5(1)(b) CFRN 1999 that such powers shall be for the execution and maintenance of the Constitution; all laws made by the National Assembly; and to all matters with respect to which the National Assembly has, for the time being, power to make laws.

It is against this backdrop, that it becomes sacrosanct that government must not only obey the constitution and other laws but must also seek to protect and promote peaceful coexistence as well as deepen the integration of all Nigerians.

It is also the duty of government to ensure the betterment of the welfare of Nigerians. In seeing to these responsibilities, government is saddled with the responsibility to tackle challenges that face the country including corruption and ethnic division which has long held the Nigerian entity bound from achieving its fullest potentials.

Admittedly, Nigeria has been plagued by untrustworthy political leaders and malfunctioning public institutions that has depraved vast majority of its citizens, food, clothing and shelther; while a few powerful ones live a lavish and excessive lifestyle. According to Transparency International, Nigeria ranks among the top fifty corrupt countries in the world.

Corruption has thrived in Nigeria not because the anti-corruption laws are not in the books but as a result of the systemic ignorance of the regulation and lack of political will to enforce sanctions. However, with the assumption of this current administration, there has been a renewed drive towards building strong public institutions that are rid of corrupt practices through the enforcement of anti-corruption regulations.

The effectiveness of the criminal justice system is however hinged on successful investigation, apprehension, trial and eventually conviction of culpable persons.Also challenging is the rise of hate speeches and ethnic threats that continues to polarise the country along ethnic and religious lines.

Technological invasion and the continuing rise in the use of social media therefore becomes a readily available tool for ignorant persons as well criminals to propagate their hate messages calculated at disrupting peace and stability in the country. Fortunately, technology does not only allow for the propagation of hate crime; it also provides new possibilities in aiding law enforcement officers in the investigation, apprehension and trial of accused persons but an unrestrained use could as well lead into deprivation of fundamental human rights and an abuse of legislations as it is been witnessed in Nigeria.

The unrestrained use of technology by state power was prominently witnessed in Nigeria when the Department for State Security (DSS) sometimes in October 2016, made use of surveillance technology to track and arrest suspected judges who had allegedly been involved in corrupt practices.

This use of surveillance technology is set again to be used at the direction of the federal government; that the military begins to monitor Nigerians on social media in order to checkmate hate speeches, anti-government and anti-security information.

While there exists no privacy legislation in Nigeria, Sec.37 CFRN 1999provides that the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected;but this right is not exclusive as Sec. 45(1) CFRN 1999 provides that the right to private life can be dispensed with for public interest and for the protection of the rights and freedom of other persons. Without gainsaying, the federal government is saddled with the responsibility of tackling corruption and hate speeches that threatens the sovereignty of Nigeria, but are these responsibilities sufficient to warrant digital surveillance and breach privacy right?

A combined reading of Sec.37 CFRN 1999 and Sec. 45(1)(a) CFRN 1999 would seem sufficient to condone the recent digital surveillance invasion being conducted by state security services and the military. But, a further reading of the opening paragraph of Sec. 45(1) CFRN 1999 requires that before Sec.37 CFRN 1999 can be breached in the interest of the public or for the protection of the rights and freedom of other persons; circumstances to warrant such breach must be stated by law. Hence, the right to a private life as enshrined in the constitution cannot be breached by the need to enforce a constitutional duty or at the direction of the President or any person saddled with the executive powers of the state in the absence of a legislative framework to warrant such breach. While the intended result of digital surveillance is legal, it has been judicial established that the illegality cannot aid a legal process,1 so not just must the end result be legal, the whole process leading to the end result must also be within the ambit of law. In light of this dilemma, would it then be appropriate for state security agencies and the military to jettison the advantage of digital surveillance in achieving their constitutional responsibilities?

State security agencies and the military need not jettison the advantage of digital surveillance in achieving their mandate. However, what is needed is a criminal justice privacy legal framework that safeguards against abuse of intrusion by security agencies and the military. The legal framework must provide for the legal authority that is competent to authorise the use of surveillance technology.

Since the level of legal authority indicates the potential privacy infringement the legislator permits, it is advised that the legal authority be thrusted upon the court, in order to separate authorisation and executory duties and to create for checks and balances within the system.

It is also essential that the legal framework clearly delineates the crimes for which the use of such technology is allowed. The severity of the crime or the gravity of the conduct being sought to be curbed should act as a prime indicator for which potential privacy infringement and digital surveillance is allowed. It also necessary to require the existence of relationship between the suspect and the crime taking into consideration the probability of the surveillance targeting only the suspects without infringing on the privacy rights of non-suspects. Without this requirement, there is a likelihood of a broad use of digital surveillance and consequently privacy infringement of citizens. In legislating a criminal justice privacy legal framework, there is a need for subsidiarity. The requirement of subsidiarity, is the consideration as to the extent which such power may be used in comparison with other less intrusive powers. For instance it may be required that before the use of digital surveillance by security agencies and the military, consideration has to be given to urgency, reasonable need and the general interest of on-going investigation.

Further, the legislation must specify the object of investigation, as the more general an object is defined in law, the broader the scope of powers. Therefore the generality or specificity of the power to use such intrusive technology must be specified by law. For example, the power to intercept voice communication differs from the power to intercept all forms of communication.

Also, there has to be a standard of need, that is, does the investigatory agency have a probable cause or a reason to believe that such intrusive technology is necessary for their investigation? Finally, in order to ensure compliance by the security agencies and the military, it is important that the legislation, creates a check that forces compliance.

Such measure can be the exclusion of any evidence obtained without adherence to the legislation. In other words, the legislation can make use of the principle of “the fruit of a poisoned tree” in order to safeguard against abuse of the legislation and ensure the perseverance of privacy right in a digital age.

The Nation News

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