Nigerian law enforcement officers could soon be
able to freely monitor and intercept the communications of
Nigerian citizens on behalf of the federal government. This
includes phone calls, text messages, chat messages and emails, in a
way which could violate the country's constitution.
In February Nigeria's Communications Commission (NCC) released a
draft policy on lawful interception and it is currently inviting
tenders from surveillance companies on behalf of the federal
government to compete for contracts. The NCC claims it is drawing
upon powers Section 70 of the 2003 Nigerian Communications Act,
which it says provide a legal and regulatory framework to allow the
lawful interception of communications in the interests of national
security, or for the purposes of preventing a crime.
Nigeria has serious problems with kidnapping, organised crime
and terrorism, but the draft policy has been widely condemned by
Nigerian citizens. Concerns have been raised about unscrupulous
security agents and law enforcement officials using the access and
information at their disposal to their own advantage, or the
government using the regulation to crack down upon the
opposition.
The policy would allow the NCC unhindered access to
communications through a regulation, rather than through actual
legislation that's been debated and voted upon by Nigeria's
National Assembly, and would be presided over by the judiciary.
There are concerns that the policy may violate the country's 1999
constitution -- which protects the individual's fundamental right
to privacy -- as well as privacy rights enshrined in international
human rights law, and that the requisite safeguards to prevent
abuse have not been put in place.
The Daily Independent reports Mallam Nasir el-Rufai, who
was guest speaker at a forum on the policy held by Nigeria's Joint
action committee on ICT awareness and development, as saying:
"Lawful interception is necessary but in the mould of Electronic
Privacy Act as it is done in other countries. You must get a
warrant from a judge before your communications is monitored. We
should never allow any law or regulation to give government blank
cheque to monitor citizens' emails, phone calls, SMS without
probable cause."
Journalists and mobile network operators are calling for proper
legislative backing from the National Assembly, as if the policy is
not entrenched in law, it will not need to be debated, will not be
subject to public input and may not provide them with adequate
protection operators with adequate protection from cyber-attacks.
It also means that once the policy is in place, it can't easily be
amended and adjusted, without going through the proper legislative
procedures.
"The biggest problem which we've seen in the region is that the
legislation is very weak with little to no judicial oversight,"
Michael Rispoli from Privacy International tells Wired.co.uk. While
policies such as these are often put in place with a specific uses,
what you see over time is "function creep". Which agencies have
access to the surveillance information and what they use it for can
be broadened and twisted, which is why frameworks to justify lawful
interception need to be very strict.
Having set rather an ugly precedent in terms of surveillance and
privacy, Western democracies find it difficult to criticise weak
legal frameworks in the developing world, says Rispoli. However it
is vital that any country that uses lawful interception does it
according to necessity,
proportionality and with proper judicial oversight in order to
protect the right to privacy of its citizens.