Public Surveillance in Nigeria: Violations of the Human Right to Privacy
Systematic surveillance of people in the public space online and offline (...) constitutes an interference with the right to privacy and can have highly detrimental effects on the enjoyment of other human rights.
- OHCHR, The right to privacy in the digital age: report of the Office of the United Nations High Commissioner for Human Rights, 2022
The growing access to technological advancements has contributed to governments starting to use surveillance tools to monitor activities on the web as well as restricting the right to privacy within the digital dimension. Public surveillance practices are common not only in the regions suffering from crisis and political turbulence, but these practices are also a common phenomenon in developed countries. Such public surveillance is often politically justified as an urgent need to protect a nation’s internal security. This narrative has recently become even more relevant in African countries given the rapid rise in national security dysfunction. The focus of this report will be on Nigeria and its state surveillance agenda as one of the most populous and politically disjointed countries in Africa.
Currently, the ongoing security challenges constitute a platform for the government to conduct certain national commitments without them being approved constitutionally. The Nigerian government has begun monitoring online activity in response to internal security concerns and the threat of terrorism. The major cost is usually borne by the population itself, and the Nigerian civic society has recently raised concerns regarding the abrupt increase in the mass surveillance, monitoring undertakings, and the way the basic human rights to privacy, freedom of expression, and opinion are being violated.
Monitoring journalists, activists, and politically engaged civic society groups or individuals has become more widespread within the Nigerian public domain, and more light is being shed on the numerous incidents of governmental officers applying spyware to confront political opponents. Certain telecommunication service providers often disclose private individuals' information to the public authorities when any anti-government agendas or digital activities are identified due to well-functioning surveillance monitoring mechanisms.
Domestic legislation that enables the use of surveillance
Under the toga of national security protection and terrorism prevention, the Nigerian government frequently severely restricts the citizens' right to privacy and civic freedoms. Besides that, the Nigerian legislative framework does not encompass any binding guidelines on the protection of personal information, despite its recognition of privacy as a fundamental human right in its 1999 Constitution. On the contrary, a multitude of domestic laws were adopted to legally permit the usage of mass surveillance mechanisms in Nigeria. The most prominent decrees are:
Terrorism Prevention Amendment Act 2013 – enables communication interception to prevent terrorism-related activities.
Nigerian Communications Commission Act 2003 – standardizes the practices of internet service providers and mobile phone companies given the right to exercise power to intercept and disclose communications data.
Cybercrimes Act 2015 – permits law enforcement of the decryption of encrypted communication.
Section 45 of the 1999 Constitution – restricts the right to privacy of citizens in the interest of public safety, order, and morality.
Even though surveillance appears to be a reasonable tool to combat and withstand the Nigerian internal security threats, such as Boko Haram and digital provocations, the cost that the society pays is becoming concerning and disproportional. An important question is whether the Nigerian government can find a way to successfully ensure national security without abusing the citizens' rights to privacy, which is one of the fundamental human rights.
It is therefore crucial to distinguish between the proportionality of usage of the discussed monitoring technologies and the abusive governmental practices that undermine the human rights to which citizens are entitled. When the line of proportionality is being crossed, government monitoring activities are slowly turning into digital repression and human rights abuse. For example, as specified by Section 38 of the Cybercrimes Act 2015, data interception is only permitted if based on an equitable suspicion of a crime. Therefore, it turns out to be questionable whether tracing the digital activities of journalists is considered proportionate and compliant with what the Act implies.
Advocacy for the digital and privacy rights in Nigeria
However, numerous non-governmental organizations and social enterprises cooperate to advocate digital rights and inclusion among the population. One of such organizations is Paradigm Initiative, an association that has been campaigning for digital rights in Nigeria for years. Paradigm has already filed a multitude of requests to the authorities as well as the Federal High Court to explain why certain provisions of the Cybercrime Act violate the civic right to privacy.
Despite many incidents of the right to privacy being undermined by governmental bodies and politicians, some significant steps have been made to improve privacy. One such step was the implementation of the NDRP Act. In 2019, the government adopted the NITDA Regulation that aims to safeguard the right of citizens to data privacy and prevent certain acts of misuse of such personal data. Under this regulation, personal data must be processed under a legitimate and lawful purpose consented to by the Data Subject. The Regulation was strongly influenced by the General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR') and has therefore met several international expectations related to the right to privacy and the steps toward the improvement of the state of matters in this dimension have been widely recognized.
Further steps
The need for legislative involvement and commitment is necessary to ensure adequate data protection and fundamental human rights are protected in Nigeria. One of these rights is the inherent right to privacy and freedom of opinion and expression, according to the Universal Declaration of Human Rights that Nigeria successfully ratified in June 1985. Improved transparency, legislative background, and better inclusion are necessary to mitigate the negative impact of public concerns on the overall perception of governmental security-oriented strategies.
Additionally, since the cost of access to the Internet in African countries is far greater than within Europe, it becomes challenging for the populations in countries like Nigeria – notably, one of the most developed ones in the region – to gain free access to digital information. Furthermore, low internet penetration contributes to the citizens' lack of proper knowledge of the risks associated with using digital tools and exposes them to digital vulnerabilities. In order to protect oneself from surveillance and censorship traps, one must be aware of how those mechanisms function and operate within society. Hence, enhanced digital literacy could potentially contribute to the public addressing data and privacy protection issues.
With the upcoming February 2023 elections the focus is being shifted to the state of insecurity in the country, while many human rights-related issues are being overlooked. It is critical to continue to address the concerns of the Nigerian public related to the continuous violations of the basic right to privacy.