Cyberweek Fall 2006 September 25-29

I have noticed that the more technologically reliant a community, the more privacy conscious they become. Clearly, law is a response to the particular needs of a community. The on going dialogue about privacy law and law of privacy in the developed nations is a good illustration of this . Jurisprudentially however, privacy is a fallacy because nobody has complete privacy except in monasteries. I believe that the more technologically advanced a community, the greater the infringement and erosion of that communities right to privacy.

This writer's opinion is that there is greater privacy in the developing countries than in developed countries. The situation in developed countries reminds me of the Orwellian novel 1984 and the exploits of 'big brother'. The mantra today should be measuring the level of surveillance and reduction in gathering of personal data on everybody.

Nigerian does not have specific privacy laws but guarantees the right to privacy in the Constitution. The means of enforcing this right is laid out in the Constitution and the right itself is also guaranteed in the Constitution. By virtue of section 46 (1) any person who alleges that any of the provisions of Chapter IV of the Constitution covering Fundamental Rights has been ,is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

Section 46 (2) states that subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the fundamental right within that State of any right to which the person who makes the application may be entitled under this chapter.

Section 46 (3) empowers the Chief Justice of Nigeria to may make rules with respect to the practice and procedure of a High Court for the purposes of this section.

Procedure for Enforcement of Fundamental Human Rights

The Chief Judge of the Federation promulgated the Fundamental Rights ( Enforcement Procedure) Rules .In the definition section of the rules , 'court' is defined a 'Federal High Court or the in Court of a State'. By virtue of Order 1 Rule 2 (1) any person who alleges that any of the Fundamental Rights provided for in the Constitution and to which he is entitled has been , is been , or is likely to be infringed may, apply to the Court in the State where the infringement occurs or is likely to occur, for redress.

Clearly we can safely say that the Constitution has given the courts jurisdiction to hear and determine cases of threatened and actual infringements. The Enforcement Procedure Rules issued by the Chief Judge of the Federation has laid out the rules for Fundamental Right actions.

Substantive Law

The purpose of this paper is to x ray the right to privacy. The right to privacy is protected under the 1999 Constitution as the right to private and family life. The privacy of citizens, their homes, correspondence, telephone conversation and telegraphic communications is guaranteed and protected by the 1999 Constitution.

The Constitution has three classifications of citizenship which are :

Citizenship by birth¹ - defined as every person born in Nigeria before the date of independence (1st day of October,1960 ),either of whose parents or any of whose grandparents belongs or belonged to a community indigenous to Nigeria: provided that a person shall not become a citizen of Nigeria by virtue of this section if neither of his parents nor any of his grand parents was born in Nigeria ;

b) Every person born in Nigeria after the date of independence either of whose parents or any of whose grandparents is a citizen of Nigeria; and

c) every person born outside Nigeria either of whose parents is a citizen of Nigeria

Citizenship by registration² - is applicable to any woman who is or has been married to a citizen of Nigeria; or every person of full age and capacity born outside Nigeria any of whose grandparents is a citizen of Nigeria.

Citizenship by naturalisation³ - this is acquired by an application for a certificate of naturalisation.

Furthermore, the Constitution only allows dual citizenship for Nigerian Citizens by birth. Any body who retains his other citizenship is required by law to forfeit that citizenship.

This writer believes that on the face of these provisions it would appear that only Nigerian Citizens have justiciable claims to the 'fundamental right to privacy' since the operative word in the constitutional provision is 'citizens' either by birth, registration or naturalisation. However, this may be debatable in view of the African Charter of Human and Peoples' Rights (Ratification and Enforcement) Act which states

'every individual shall have the right to have his cause heard .This comprises : the right to an appeal to competent national organs against acts violating his fundamental rights as recognised and guaranteed by conventions , laws , regulations and customs in force'.

Furthermore, Article 2 states that:

Every individual shall be entitled to the enjoyment of the rights and freedoms as recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language ,religion, political or any other opinion, national and social origin ,fortune, birth or to other status.

It is arguable that the 'fundamental right to privacy'in Nigeria could be claimed by non citizens under the provisions of the African Charter of Human and People's Rights because the restriction on the fundamental right to privacy on the basis of nationality in the 1999 Constitution is discriminatory. But on the other hand, the Constitution is the 'grund norm' from which all other laws flow and it is unlikely that a challenge to that provision in the Constitution would succeed.

In the case of Mr .Daniel Orhiunu V. Federal Republic of Nigeria⁴, a Court of Appeal decision in which Suleiman Galadima,J.C.A read the leading judgment stated that

'The Constitution is what is called the grundnorm and fundamental law of the land. All other legislations in the land take their hierarchy from the provision of the Constitution. By the provisions of the Constitution, the laws made by the National Assembly comes next to the Constitution; followed by those made by the House of Assembly of a State. By virtue of section 1(1)of the Constitution, the provisions of the Constitution take precedence over any law enacted by the National Assembly even though the National Assembly has power to amend the Constitution itself.'

Conclusion

This writer believes that the reason for less surveillance in the developing world is because we have not adopted the technologies that invade our citizen's rights. However, as we become more technologically reliant that danger strongly exists. At this juncture however, we have the opportunity to avoid the on going fiasco in the developed world by policing privacy and using technologies that will protect our privacy. If privacy is left in the hands of executive and legislature, it could be disastrous. Privacy can only be protected by a global effort as ultimately it is viral and breaches in one jurisdiction slowly begin to pollute other jurisdictions.

¹Section 25 ,1999 Constitution of the Federal Republic of Nigeria
²Section 26, 1999 Constitution of the Federal Republic of Nigeria
³Section 27, 1999 Constitution of the Federal Republic of Nigeria
⁴Nigerian Weekly Law Reports ,Part 906 ( 2005) 1.N.W.L.R ,Pp.55 -56, paras H- B

Ayo Kusamotu is a partner in Kusamotu & Kusamotu(www.kusamotu.com). He is the Chairman of the ICT Committee of the Lagos Branch of the Nigerian Bar Association and a Fellow of the Centre For Information Technology and Dispute Resolution, University of Massachusetts.