position to urgently review and rescind your reported approval for
security agencies to access people’s personal details via NIN-SIM
linkage without due process of law.”
SERAP is also urging the president to “send executive bills to the
National Assembly to repeal and reform all laws, which are inconsistent
and incompatible with Nigerians’ rights to privacy, dignity and
liberty.”
SERAP’s letter followed reports that some security agencies have
received presidential approval to access people’s personal details via
the database of the National Identity Management Commission in the
course of carrying out their duties.
In the letter dated 5 February 2022 and signed by SERAP deputy director
Kolawole Oluwadare, the organisation said: “If your reported approval is
not rescinded, millions of law-abiding Nigerians may feel that their
private lives are the subject of constant surveillance.”
SERAP said: “The interference entailed by unlawfully or arbitrarily
accessing people’s personal details is far-reaching and must be
considered to be particularly serious.”
According to SERAP, “The reported approval to allow security agencies to
access people’s personal details via NIN-SIM linkage without due process
of law directly interferes with the privacy, dignity and liberty of
individuals.”
SERAP also said, “Interference with an individual’s right to privacy is
not permissible if it is unlawful or arbitrary.”
The letter, read in part: “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 and
democratic principles by the monitoring and surveillance of millions of
Nigerians.”
“It is crucial to rescind the approval, and 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.”
“The risk of arbitrary or abusive interference shows the importance for
your government to comply fully with the requirements of legality,
necessity and proportionality.”
“The right to privacy allows Nigerians to hold opinions and exercise
freedom of expression without arbitrary or illegal interference and
attacks.”
“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 reported presidential approval to security agencies does not align
with the principle that any restriction on human rights capable of
limitation should be the least intrusive means possible, and shall be
necessary and proportionate to the benefit sought.”
“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.”
“SERAP notes that 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.”
“Similarly, measures restricting enjoyment of the right to privacy must
comply with the principle of proportionality, meaning that they must not
unduly interfere with other rights of the persons targeted.”
“In the digital age, protecting the right to privacy requires
exceptional attention. While acknowledging the challenging issues that
your approval may seek to address, SERAP is seriously concerned that
this may be used as a pretext by security agencies to violate Nigerians’
right to privacy and other related human rights.”
“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, suggests the urgent need to
review the matter, and rescind your approval, consistent with
constitutional and international standards.”
“SERAP notes that 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.”
“According to reports, some security agencies have received your
approval to access people’s personal details via the database of the
National Identity Management Commission in the course of carrying out
their duties. The Minister of Communications and Digital Economy, Isa
Pantami reportedly conveyed the approval to the relevant security
agencies.”
“Mr Pantami also reportedly stated that the approval would enhance
security as it would help security operatives to go after kidnappers and
other criminals.”
“The approval would now 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.”
“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.”
“Any constraints upon the right to privacy must strictly comply with the
principles of legality, necessity and proportionality. These
requirements are included in the Nigerian Constitution and the human
rights treaties to which Nigeria is a state party.”
“We would be grateful if the recommended measures are taken within 7
days of the receipt and/or publication of this letter. If we have not
heard from you by then, SERAP shall take all appropriate legal actions
to compel your government to comply with our request in the public
interest.”
The letter was copied to Mr Abubakar Malami, SAN, Attorney General of
the Federation and Minister of Justice, and Mr Isa Pantami, Minister of
Communications and Digital Economy.