Over the last two decades that mark the automatic beginning of the 21st century around the globe, Nigeria, the most populated state on the Africa continent has not been able to effectively control and regulate the populace data and digital circle. Although, in the late 20th century and early 21st century, there had been alot of formation, reformation and implemetations in various sectors relating to telecommunication, digitalization and database. However, perhaps unfortunately, the state government in the last 6 years has in one way or the other, instead of developing and stabilizing the sector, has been crippling these sectors and unable to make judicious and use of allocated funds directed to the sector.
Countries around the globe have in numbers of time come together to explain the implications of the provision of Article 3 of the UDHR that provides that “everyone has the right to life, liberty and security of person”. Which implies all security measures must be consistent with international human rights law and standards. “This means that security measures will be illegal where they restrict another human right (for example the right to privacy or the right to freedom of expression) except for in exceptional circumstances. All restrictions must be precise and narrowly defined. All restrictions must be the minimum necessary to meet a genuine need which is recognized as legal under International law, and proportionate to that need. Restrictions must also meet additional criteria which is specific to each right. No restrictions outside of these strict limits are permitted.” So far countries like U.S.A, Canada and some countries recognise this provision and make local provisions that enable and widen it.
The major focus of a state facing various cases of insecurity like Nigeria suppose to be firstly; accurate compilation of the subjects’ data and secondly; ways to make effective use of those datas in crime detection.
It has been recorded over times that Nigeria government budgeted huge amounts of money in the name of expanding data collection and control. Specifically, 13.9 survelance in 2017, 2018 and 2020 respectively. Just of recent, the Federal Ministry of Communications and Digital Economy (Previously Ministry of Communication) under the Prof. (Dr.) Isa Ali Pantami, declared that SIMS found not linked with National Identity Number NIN, will be cut off. The goal, according to the Ministry, is that most crimes like terrorism, advance fee fraud and banditry and kidnapping have no space for sustenance with the system in place.
With utmost sincerity, linking of NIN to SIMs is a good initiation by the ministry but its purported aims that we’ve been tired of hearing from its promoters yelling it to our clear ears have not been yet recorded to call a success.
Instead, NIN and other projects by the Nigeria government have been indirectly used to tamper Nigerian’s freedom of expression, communication and by implication; rights to association. To uplift this from a baseless claim, the earlier point as to the threats made of cutting off lines of users that are yet to enroll on the NIN and afterward, link with their SIM is a typical example.
Not only that, experts have expressed fears over the fact that the surveillance project by government might actually be used in surveillance and secret monitoring of citizens and many Nigerians, especially journalists, have in love of dear lives disappered into thin airs after several threats and unrest arising from unknown sources – especially during endSARS.
The question of whether there’s or are law(s) safeguarding individuals right as to digital and data is in place in Nigeria and if at all its, its enforceability and extent, might be a reader’s question and for lawyers and law students, legal implications of those laws are of ultimate concern.
To be precised, there are no laws or written provisions that guarantee data and digital rights in Nigeria, this is as a result of inactive legislative system the country has and probably “failure” of the colonial masters to transfer a well defined provisions to us, as they did to us in roughly all provisions which some of the them have not been amended uptil date – Sales of Goods Act 1893 is a good example to this.
In the midst of many, The Constitution of the Federal Republic of Nigeria 1999, Nigeria Communication Act (2003), Child Right Act (2003), National Identity Management Commission (2007), Consumer General Code of Practice (2007), National Health Act (2014), Cybercrime (Prohibition, Prevention e.t.c) Act (2015), Freedom of Information Act (2015), Nigeria Data and Protection Regulation, Nigeria Communications (Enforcement Process e.t.c) Regulations (2019), Registration of Telephone Subscribers Regulations (2011), Lawful Interception of Communication Regulations (2019), Consumer Protection Framework 2016 and other provisions regulate data and digital control in Nigeria. However, while some provisions define and protect individuals right, some prohibit and limit their rights and actions most especially from negative usage.
To summarily and randomly discuss; Constitution of the Federal Republic of Nigeria in Section 37 provides for the Right to Privacy and (Tele)Communications, it provides as follows; “the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.” As stated above there’s no defined and well stated law that guarantee digital and data right in Nigeria. The provision of Section 37 of the 1999 constitution gives right to privacy and communication but these rights can be limited when the interest of the general “public safety” order, defence, morality and health arise. The legal implication of this is that Privacy and Freedom of Speech online (digital) is not well defined but “public safety” is, and can be broadly interpreted.
National Identity Management Commission Act provides that no person or corporate body has access to data in the database concuring a registered individual without authorisation from the commission. Contrarily, the commission can provide a third party with information in the database without the owner’s consent if it’s of national security interest. Theimplication of this also is that individuals data is out of their control; that is entrusted in someone else’s ‘hand’, be it a government agency or any corporate, any is under the control of a nation –Nigeria– that has the responsibility of ensuring security. It’s important to note that the term national security interest can also be extensively and broadly interpreted.
Under the Communication Act (2003), communications made online can be accessed to by security agencies whether the information required is that of an innocent common citizens, journalists, advocates or even criminals. The Communication Act had been severally criticized by writers and advocates for limited judicial oversight and broad interpretation of national interests that leads to abuses. The Act provides for matters that are of National Interest in Section 146 – 149. The Act also makes it mandatory for netwok service providers to assist authorities in preventing crime and protecting national security and grants senior police officials the power to obtain call data from telecommunications companies without a court order.
The Nigeria Communication (Enforcement Process, e.t.c.) Regulations 2019 requires a licensee to keep records of call data per the Cybercrimes Act and Consumer Code Regulations. Also any authority may access basic information with a written request signed by a police officer (at or above the rank of an assistant commissioner or equivalent). In contrast, non basic information requires a court order.
The sudden emergence of The Pretection Internet Falsehood and Manipulation Bill, 2019 (Social Media Bill), the Prohibition of Hate Speech Bill (Hate Speech Bill) and the refusal of President Muhammadu Buhari to assent the Digital Rights and Freedom Bill into Law “which would have extended the protection of human rights for Nigerians to the internet”, have all contributed to the backwardness, limitation of internet rights, day by day shrinking of civic space and prohibiting freedom of expression online.
The legal implication of these bills (Social Media and Hate Speech Bills) and refusal of the president to assent the ‘ready’ Digital Rights and Freedom Bill was that the (Social Media and Hate Speech Bills) limit freedom of speech online and carry unclear provisions against sharing statements “likely to be prejudicial to national security”. This can be understood to be prosecution of anyone who criticises the government. Although the Nigerian constitution provides for freedom of expression, repressive technique can be used to effectively censor advocates and members of the public.
In addition, government agencies, public and private companies are responsible for the control of data and digital usage in Nigeria. Government agencies like tax collection agencies, Immigration, Identity Management Services and some others are recognised while in private sectors telecommunication companies, banks and others are relevantly recognized.
Reports have it that NITDA fined Lagos State Internal Revenue Service (LIRS) 1 Million Naira for breach of taxpayer’s data. Also in March 2021, NITDA imposed a fine 5 Million Naira on Electric Settlement Limited for personal data breach after a 16-months investigation process. Several event of how private institutions like Loan Companies and Banks have extrajudicially exposed the information of their customers are also countless.
Conclusively, it is, from the above analysis clear enough that Nigeria unlike most countries, is still poor in development when it comes to data and digital keeping and individuals’ rights of both.
Plus the NIN, Nigeria is financially blessed to have CCTV in all nooks and crannies of the state, a development which would safe the state from everyday sweat of reducing accident, crimes insecurity, reckless driving, terrorism, banditry, kidnapping and other related crimes. It has been found essential to note that unlike the developed countries and as well the early days of technology in Nigeria, previous administrations have by various ways tried to develop the technology, data and digital sector both statutorily and financially. In converse, in the last 6 years technology, right to privacy and freedom of speech (both online and offline) have been discouraged by the Nigerian government, it had also refused to, by express or by implication create any beneficial rights. Examples are the ban of twitter and ban of cryptocurrency transactions among others.
Its anyway essential to applaud the state government for creating the electic version of naira – Enaira, despite the challenges on apps and criticisms the FIAT experienced.
Finally, it is until we accept data and digital right that we develop as a nation. This has to undergo many challengess as predicted by a researcher, he said, “Drafting a Data Protection Bill is one thing but getting it through the National Assembly is another challenge”. Another observer, a human right activities, said “there’s a gap in terms of manpower and developing the jurisprudence – judges also need to be trained..sometimes you get unfavourable judgement because judges don’t believe data protection is a fundamental right”.
Akinkunmi is a level 300 student of law at Bayero University, Kano, can be reached via adewaleadiguna@gmail.com.
