President Buhari had in February reportedly given his approval for some security agencies to access the database of the National Identity Management Commission in the course of carrying out their duties.
But in the suit number FHC/L/CS/448/2022 filed last Friday at the Federal High Court, Lagos, SERAP is asking the court to determine “whether the approval for security agencies to access people’s personal details via the National Identification Number [NIN] without due process is consistent with the principles of legality, necessity, and proportionality.”
SERAP is asking the court for “an order setting aside President Buhari’s approval for security agencies to access people’s personal details via NIN-SIM linkage without due process of law, as this amounts to violations of private and digital communication rights, right to family life, human dignity and personal liberty.”
SERAP is also asking the court for “an order of perpetual injunction restraining the Federal Government or any other authority, persons or group of persons from unlawfully accessing people’s personal details via NIN-SIM linkage without due process of the law.”
In the suit, SERAP is arguing that: “If President Buhari’s approval is not rescinded, millions of law-abiding Nigerians may feel that their private lives are the subject of constant surveillance.”
SERAP is also arguing that, “In the digital age, protecting the right to privacy requires exceptional attention. The approval may be used as a pretext by security agencies to violate Nigerians’ right to privacy and other related human rights.”
According to SERAP, “Interference with an individual’s right to privacy is not permissible if it is unlawful or arbitrary.”
SERAP is also seeking “a declaration that President Buhari’s approval for security agencies to access people’s personal details via NIN-SIM linkage without due process of law is inconsistent with the principles of legality, necessity, and proportionality.”
SERAP is further arguing that, “It is crucial to respect the autonomy of individuals to receive and share information of a personal nature without interference from the authorities, if unintended adverse consequences are to be avoided.”
Joined in the suit as Respondents are Mr Abubakar Malami, SAN, Attorney General of the Federation and Minister of Justice, and Mr Isa Pantami, Minister of Communications and Digital Economy.
The suit filed on behalf of SERAP by its lawyers Kolawole Oluwadare and Opeyemi Owolabi, read in part: “The right to privacy allows Nigerians to hold opinions and exercise freedom of expression without arbitrary or illegal interference and attacks.”
“While the effectiveness of the fight against serious crime may depend to a great extent on the use of modern investigation techniques, such an objective of general interest, however fundamental it may be, cannot in itself justify the unlawful or arbitrary interference with the right to privacy.”
“Unlawful or arbitrary access to people’s personal details would contravene section 37 of the Nigerian Constitution 1999 (as amended), article 17 of the International Covenant on Civil and Political Rights, and article 5 of the African Charter on Human and Peoples’ Rights, which protect against arbitrary or unlawful interference with one’s privacy.”
“The power to access individual’s details raises serious concerns as to their arbitrary use by the authorities responsible for applying them in a manner that reduces human rights by the monitoring and surveillance of millions of Nigerians.”
“Violations or abuses of the right to privacy might affect the enjoyment of other human rights, including the right to freedom of expression and to hold opinions without interference.”
“Private conversations of individuals – which belong to their intimate sphere and contribute to their personal development – also enjoy strong legal protection and can only be limited based on the principles of legality, necessity and proportionality.”
“The right to privacy can enable the enjoyment of other rights and the free development of an individual’s personality and identity, and an individual’s ability to participate in political, economic, social and cultural life.”
“In relation to the requirement of legality, any limitation must be expressly, exhaustively, precisely, and clearly provided for in a law in the formal and material sense. It is not enough that the restrictions be formally approved by the president or by any other competent body: they must also be sufficiently clear, accessible and predictable.”
“The undermining of the universality of fundamental human rights, alongside the potential encroachment upon the enjoyment of the right to privacy raised by the presidential approval, shows the need for the approval to be reversed.”
“The relationship between data principals and the authorities involves a power imbalance. Nigeria ought to provide the leadership in developing a data protection framework that is fully consistent and compatible with the protection of the fundamental and inalienable right to privacy.”
“If not reversed, the approval would allow security agencies to access the data of the over 73 million Nigerians who have linked their National Identity Number with their SIM, and other people who may do so.”
No date has been fixed for the hearing of the suit.
