27 February 2013

Nigeria: No Wiretap Law Unless...

A DRAFT legislation the Nigerian Communications Commission, NCC, has before the National Assembly, will endanger our liberties, if it becomes law. Titled 'Draft Lawful Interception of Communications Regulations', it would allow unhindered access to communications under the guise of security.

NCC on its website states, "These Regulations shall....provide the legal and regulatory framework for the lawful interception of Communications in Nigeria and to put into effect the provisions of Sections 146 and 147 of the Act (the Nigerian Communications Act).

Section 147 of the Nigerian Communications Act states, "The Commission may determine that a licensee or class of licensee shall implement the capability to allow authorised interception of communications and such determination may specify the technical requirements for authorised interception capability."

However, as the Nigerian telecommunications revolution progressed, crimes are being committed using electronic devices, particularly mobile telephones and computers. In attempting to solve some of these crimes, law enforcement agencies have found call records of targeted individuals useful, and obtained them to speed up investigations. In many cases, these have not been done with warrants duly signed by judges of competent courts.

Section 4 of the draft regulation allows interception of communications without a warrant. We hold that this is not just porous as it is open to all kinds of abuses, but injurious to the primacy and privacy of communications among individuals. How do we tackle abuses that could arise? How safe would the information be for unauthorised uses?

Further, the draft regulation says in Section 7 that "a warrant shall be granted for an initial period of three months or such lesser period as the judge may determine based on the circumstances of the application made before the judge and shall cease to have effect at the end of the period stipulated in the warrant unless renewed."

This is particularly problematic, as information accumulated over three months may not be germane to the initial case but form grounds for a fresh case. This cannot be overlooked in a polity like ours, where public institutions are prone to misuse and abuse by elected officials in pursuit of political objectives.

Our communications are on record, and fears abound that under the cover of fighting crimes, the records can be used for other purposes. A solution could be found in provision of jail terms for those who abuse information collected for national security or for crime investigation.

Section 37 of the Constitution states that, "The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected."

The proposed legislation runs contrary to the Constitution, without appropriate checks against abuses, it will pose more dangers by curtailing our liberties than in fighting crimes.

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