Introduction

Recently, the news that the Federal Government of Nigeria signed a multi-million dollar Internet surveillance contract became viral in the media. As intended by the government this is for the purpose of monitoring internet communication in Nigerian. Reports[1] had it that the contract was a $40 million agreement between the Nigerian government and Elbit Systems, an Israel-based company.

Earlier, the Federal government had set aside the sum of $61.9 million in the 2013 budget for ‘Wise Intelligence Network Harvest Analyzer System, Open Source Internet Monitoring System, Personal Internet Surveillance System and Purchase of Encrypted Communication Equipment.” Some dust had indeed been raised about the planned surveillance aimed at ensuring national security. Some analysts had identified the good intention that might have informed the decision, but also warned that it might become a dangerous weapon in the hands of a suppressive administration.

Although the President Goodluck Jonathan is reported to be considering the cancellation of the $40million Internet spy contract awarded to the Israeli firm[2], following the national outrage that followed the news leaked by Premium Newspapers[3], it is important we examine the issues.

The Issues

Considering that the secret contract was to help the Jonathan administration access all computers and read all email correspondences of citizens by having the Isreali company spy on citizens’ computers and Internet communications under the guise of intelligence gathering and national security, it is important we consider the legal implications. The same contract may be re-awarded to another company.

In examining this Internet spy contract, a number of issues arise. Is the Internet surveillance contract an illegal violation of the privacy of citizens? Is it reasonably acceptable in a democratic society? Given the security challenge in the country, is it legally justifiable? And does the Federal government even have such powers ab initio? If it does, was the power properly exercised as provided in the 1999 Constitution as amended) and other relevant laws in the country? What is the position of international regulations concerning Internet freedom and the right of privacy of citizens? Let’s take these very pertinent issues one after the other.

Is the Internet surveillance contract an illegal violation of the privacy of citizens?

The right of privacy is guaranteed by the Constitution. This fundamental tight has been provided for in section 37 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

The section stipulates unequivocally that “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.” Under what law has the Federal government acted to violate this provision? At best, the only restriction and derogation from this fundamental right has been provided in section 45(1) (a)(b) of the same Constitution, which states:

Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society—

  1. a) in the interest of defence, public safety, public order, public morality or public health; or
  2. b) for the purpose of protecting the rights and freedom of others.

In other words, before the government can lawfully derogate on the citizens’ right of privacy, the Internet surveillance be in accordance with a “law that is reasonably justifiable in a democratic society”. It must also be for the specific purpose of protecting interests such as defence, public safety, public order etc.

Rather than publicly justify its intended surveillance plan, what the government has done is to secretly enter into a contract with a foreign company. A move that itself has its own considerable security risks and implications for the country as a sovereign state, and the power house in the West African region with leading role in the ECOWAS and ECOMOG.[4] Till the time of writing this piece, the Nigerian public are yet to see any such law as section 45(1) of the 1999 Constitution being relied upon in the award of the surveillance contract, a clear violation of the citizen’s right to privacy.

Even if we assume that the activities of terrorists in the country, such as Boko Haram informed this decision, the government has neglected, failed or refused to prove to Nigerians that the Internet has become a dangerous technology in the hands of the fundamental sect to unleash terror on Nigerians. Should Nigerians be blamed therefore if the majority opinion is that this was aimed at the rising opposition to government. This is particularly so against the background of the increasing use of social media by many activists, critics and individuals in the country.

Does the Federal government have the power to enter such a secret contract? And if it does, was the power properly exercised as provided in the 1999 Constitution of the Federal Republic of Nigeria (as amended) and other relevant laws in the country?

As it has already been stated above, subject to the qualifications in section 45(1), section 37 of the Constitution prohibits the government from such act. The contract had been secretly awarded in wanton disregard of the Fiscal Responsibility Act, Bureau of Public Procurement Act 2007 and the general requirements of due process in the award of such contracts.[5]

Therefore, assuming without conceding that the Federal government had such powers by virtue of section 45(1) of the Constitution, such powers must be seen to have been improperly exercised as to amount to a complete illegality. It must be seen as unconstitutional, invalid and unacceptable.

Moreover, from the angle of the Federal government policy on local content, it must also be seen as being inconsistent with the local content principle. Local content in the sectors of the economy is being promoted by the government through the National Information Technology Development Agency (NITDA) by realising a self-reliant national economy towards the attainment of Vision 20:2020.

On the position of international regulations concerning Internet freedom and the right of privacy of citizens, keep a date with me next week! We will also be providing possible ways in which the Federal government could go about this under the ambit of the law.

The threat to internet freedom is global.

Internationally, there has been a strong advocacy for Internet freedoms. The concept of Internet freedom includes the rights to freedom of expression and opinion, and the rights to seek, receive, and impart information. These rights are fundamental rights and have been protected by Article 19 of the Universal Declaration of Human Rights.[6]

Recently, threats to internet freedom around the world have been on the increase. The $40m Internet Spying Contract which had been secretly entered into by the Nigerian government for instance. Such absolute measures may have been informed by the increasing power of the Internet in the current information age as more and more people gain access to the Internet and use same as avenues to express their opinions.

The growing threats to internet freedom have been published in reports such as Freedom on the Net 2012.[7] The report showed that restrictions on internet freedom have continued to increase with “brutal attacks against bloggers, politically motivated surveillance, proactive manipulation of web content…”[8] ]including other restrictions.

Today, there have been significant developments on international resolutions affecting Internet freedom.

One of the international resolutions is the UN Human Rights Council Resolution L13.[9] This resolution affirmed that all human rights applicable offline should also apply online. The resolution, titled “The promotion, protection and enjoyment of human rights on the Internet,” has been described as the “first of its kind” as it explicitly recognised Article 19and focused on its applicability to online media.

In my opinion, I think the extension of the recognition of human rights as fundamentally guaranteed by the UN Declarations on Human Rights and the Constitutions of many countries around the world is a brilliant provision.  In this way, countries such as Nigeria may not need to make a new legislation to protect internet freedom. Of course, the provision of section 39(1) of the 1999 Constitution[10] is already in all fours with that contained in Article 19 of the UN Declarations.

Prior to the landmark resolution mentioned above, Frank La Rue, the UN Special Rapporteur on freedom of opinion and expression, had a year earlier presented a report to the Council in Geneva. The report had also asserted that Internet freedoms are guaranteed under Article 19 of the Universal Declaration of Human Rights.[11]

Other assertions concerning Internet freedoms were made in the 2011 Joint Declaration on Freedom of Expression and the Internet. This was signed by various international and multi-national representatives of bodies such as the African Commission on Human and Peoples’ Rights (ACHPR), the Organisation for Security and Cooperation in Europe (OSCE), Organisation for American States (OAS) and the United Nations Human Rights Council (UNHRC).

Conclusion

To draw the curtain on this discourse, a few words for the Federal government. The Governments should ensure that any surveillance initiated for the purpose of preventing or responding to any threat to national security should be limited, exceptional, subject to the approval of an independent judiciary and should not violate the Constitution.

Although the resolution is nonbinding, interestingly it is supported by China, a country notorious for its sophisticated system for filtering and censoring web content. Should Nigeria be an exception?

This welcome development is an important step. It demonstrates how new technological advancements and electronic frontiers can be incorporated into the more traditionally established body of not only international human rights agreements, but also the grundnorm, the Constitution. As the principle of internet freedom gradually evolves in Information Technology, we hope its scope of application would improve.

 

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[1] EXCLUSIVE: Jonathan awards $40 million contract to Isreali Company to monitor computer, internet communications by Nigerians, Premium Newspapers  at http://premiumtimesng.com/news/131249-exclusive-jonathan-awards-40million-contract-to-israeli-company-to-monitor-computer-internet-communication-by-nigerians.htmlaccessed on 29 July 2013.

[2] Nigeria’s Internet Surveillance Contract in Jeopardy published on African Defense at http://www.african-defense.com/?p=2054accessed on 1 August 2013

[3] See the Premium news article referenced above.

[4] ECOWAS is the Economic Community of West African States; whilst ECOMOG is the peace keeping and security unit of the ECOWAS known as the ECOWAS Monitoring Group.

[5] This fact has also formed the basis of the current investigation of the matter by the ICT, Human Rights and Anti-Corruption Committee of the House of Representatives. See Cyber Warfare and Nigeria’s National Security, published on Thisday at http://thisdaylive.com /articles/cyber-warfare-and-nigeria-s-national-security/148887/ accessed on July 27, 2013.

[6] Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. http://ichrp.org/en/article_19_udhr

[7] “Freedom on the Net 2012” is a report published by Freedom House as part of a series of comprehensive studies of internet freedom around the globe and covers developments that occurred in 47 countries between January 2011 and May 2012. See  http://freedomhouse.org/report/freedom-net/freedom-net-2012, accessed on August 3, 2013

[8] See also http://freedomhouse.org/report/freedom-net/freedom-net-2012 accessed on August 3, 2013

[9] On July 5, the UN Human Rights Council unanimously adopted this landmark resolution on freedom of expression online. This resolution explicitly affirmed that “the same rights that people have offline must also be protected online, in particular freedom of expression”. See Landmark UN Resolution an Important Step for Global Internet Freedom

[10] In Nigeria, section 39(1) guarantees that every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference

[11] Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. http://ichrp.org/en/article_19_udhr

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