The Nigerian Surveillance State: Neglected issue around Samuel Ogundipe’s Arrest

The Nigerian Surveillance State: Neglected issue around Samuel Ogundipe’s Arrest

The dust may have settled, the hash tags may have stopped trending, and Samuel Ogundipe may have been granted bail but important issues around his arrest remains. The illegality or otherwise of his arrest is a matter for the court to determine.  However, there are many other important issues generated by Samuel’s arrest that are not being interrogated which are important and have serious implications for democracy and application of rule of law in Nigeria in the digital age. After Ogundipe’s  arrest, certain facts emerged to corroborate what’s already suspected as the modus operandi of the Nigerian security agencies. According to a report by the New York based Committee to Protect Journalists CPJ;

 “Mojeed, Ogundipe’s colleague narrated how the police showed him a file of information on Ogundipe, including call history, which the police officer said they received from the telecommunication service provider, and bank details. Another colleague, Adedigba was also quoted in the same report to have said that the police said they got her number from her service provider, privately owned MTN…”

These are very serious issues and they bring to fore the important questions around how citizen’s private call and bank records are indiscriminately accessed by law enforcement agents in Nigeria.  Without a doubt, it is great for security agencies to leverage technology in the discharge of their duties especially during investigation. It is however important that this process itself be guided by the application of the “rule of law” and best global standards. The issue becomes more worrying, given the poor and abysmal human rights records of Nigerian security agencies.

The Nigerian 1999 Constitution as amended guarantees and protects “the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications.” In addition to this, Telecommunications Companies owe their customers a duty to protect their privacy and personal information shared with them in trust. It does not seem that intermediaries (Banks and Telecommunications companies in this context) push back against request by security agencies. It is problematic to grant every request made by law enforcements as that clearly represent a porous system that will be easily abused as is the case in question. Meanwhile, this is not the first time law enforcement has demonstrated lack of regard for due process. In December 2016, Ayodele Fayose, Ekiti State Governor and a leading opposition figure accused the Department of State Security Service (DSS) of leaking his telephone conversation with Governor Wike of Rivers State also of the opposition party. The DSS never denied and never demonstrated justification (If any) for the act. The Nigerian surveillance state is well known to be unaccountable and has no defined frameworks or processes that are known to any Nigerian law. It is very disturbing that law enforcements agents have access to citizens’ private call records and bank transaction details without due process.

The Nigeria Communications Commission released a draft guideline for lawful interception of communications in 2013 and also received public input for same.  5 years later, that guideline remains what it is “A mere draft”.  Also a Bill (Lawful Interception of Information) Bill, 2015 HB 35. Introduced in the House of Representatives on the subject hasn’t made much progress since 2015 when it was introduced.

In March 2018, the National Assembly passed the Digital Rights and Freedom Bill (HB490) but is yet to transmit same to the President for assent. The Bill among other things provides legal frameworks that conform to global standards around Interference and surveillance of communication. Clause (5) sub clause (3) of the Bill provides that;

“There shall be clear procedures by which the private data of individuals, stored by intermediaries, can be accessed.”

Also, Clause (9) sub clause (7) of the bill provides that

“Government agencies shall obtain a search warrant based on probable cause before it can compel any service provider to disclose a user’s private communications or documents stored online”.  

Moreover, the Bill recognizes that there are cases requiring urgency. In Clause 5, Sub clause (7) and (8), it states as follows;

Under certain exceptional situations where the State may limit the right to privacy for the purposes of administration of criminal justice or prevention of crime, such measures shall be in compliance with the international human rights framework, with adequate safeguards against abuse.

Measures referred to in sub-clause (7)  include ensuring that any measure to limit the right to privacy is taken on the basis of a specific decision by a State Authority expressly empowered by law to do so, and shall respect the principles of necessity and proportionality.

In addition to the Digital Rights and Freedom Bill, the Data Protection Bill (HB02) and the Protection of Personal Information Bill (SB310) provides protection for citizen’s data. However, these bills are yet to be passed by the National Assembly. The President’s signature to make the Digital Rights and Freedom Bill into Law is key to bringing sanity into the Nigerian surveillance state. Innocent citizens will be assured of legal protection and Intermediaries will regain user trust. Over to you, Mr. President.