Socio-Economic Rights and Accountability Project (SERAP) has filed a lawsuit against President Muhammadu Buhari, asking the court to declare illegal and unconstitutional all plans by the administration to track, intercept and monitor WhatsApp messages, phone calls, and text messages of Nigerians and other people, as it severely threatens and violates the right to the preservation of privacy.
The suit was filed in response to a proposal in the Supplementary Appropriations Act of 2021 to spend N4.87 billion to monitor private calls and messages. The money comes from the National Assembly’s approval of a N895.8 billion supplementary budget.
SERAP is seeking an order of perpetual injunction prohibiting President Buhari and any other authority, person, or group of persons from unlawfully monitoring the WhatsApp messages, phone calls, and text messages of Nigerians and others in the suit FHC/ABJ/CS/1240/2021 filed last Friday at the Federal High Court in Abuja.
“The plan to monitor WhatsApp messages, phone calls, and text messages is an arbitrary interference by the administration into respect for family and private life, the home, and correspondence,” said the suit filed on behalf of SERAP by its lawyers, Kolawole Oluwadare and Kehinde Oyewumi.
It also fails to meet the legality, necessity, and proportionality requirements. The Buhari administration is legally obligated to protect Nigerians and others from arbitrary interference and human rights violations.
Monitoring WhatsApp messages, phone calls, and text messages would give government agencies carte blanche to conduct mass surveillance of people’s communications.
Even if mass surveillance is secret, the mere threat of it, combined with the lack of a remedy, can amount to a violation of human rights, including the right to privacy, freedom of expression, peaceful assembly, and association.
In the digital age, privacy and expression are inextricably linked, with online privacy serving as a safe haven for exercising one’s right to freedom of expression. As a result, whether the monitoring effort is successful or not, targets of surveillance will have their rights to privacy and freedom of opinion and expression violated.”
Minister of Justice and Attorney General of the Federation, Abubakar Malami, and Minister of Finance, Budget and National Planning, Mrs Zainab Ahmed, are named as respondents in the suit.
“The plan to monitor WhatsApp messages, phone calls, and text messages is an arbitrary interference by the administration into respect for family and private life, the home, and correspondence,” the suit filed on behalf of SERAP by its lawyers, Kolawole Oluwadare and Kehinde Oyewumi, read in part.
It also fails to meet the legality, necessity, and proportionality requirements. The Buhari administration is legally obligated to protect Nigerians and others from arbitrary interference and human rights violations. Monitoring WhatsApp messages, phone calls, and text messages would give government agencies carte blanche to conduct mass surveillance of people’s communications.
Even if mass surveillance is secret, the mere threat of it, combined with the lack of a remedy, can amount to a violation of human rights, including the right to privacy, freedom of expression, peaceful assembly, and association.
In the digital age, privacy and expression are inextricably linked, with online privacy serving as a safe haven for exercising one’s right to freedom of expression. As a result, whether the monitoring effort is successful or not, targets of surveillance will have their rights to privacy and freedom of opinion and expression violated.”
Minister of Justice and Attorney General of the Federation, Abubakar Malami, and Minister of Finance, Budget and National Planning, Mrs Zainab Ahmed, are named as respondents in the suit.
“The powers to conduct arbitrary, abusive or unlawful surveillance of communications may also be used to target political figures and activists, journalists and others in the discharge of their lawful activities.
Any spending of public funds should stay within the limits of constitutional responsibilities, and oath of office by public officers, as well as comply with Chapter 2 of the Nigerian Constitution relating to fundamental objectives and directive principles of state policy.
The lack of any safeguards against discriminatory decision-making, and access to an effective remedy shows the grave threats the purported plan poses to constitutionally and internationally recognised human rights. “Section 37 of the Nigerian Constitution and Article 17 of the International Covenant on Civil and Political Rights provide for the right to freedom from arbitrary or unlawful interference with privacy and correspondence, communications and private data.
Section 39 of the Nigerian Constitution and Article 19 of the Covenant also guarantee the right of everyone to hold opinions without interference and to seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any media.
The UN General Assembly has condemned unlawful or arbitrary surveillance and interception of communications as ‘highly intrusive acts’ that interfere with fundamental human rights (see General Assembly resolutions 68/167 and 71/199).
Interference with privacy through targeted surveillance is designed to repress the exercise of the right to freedom of expression. Surveillance of journalists, activists, opposition figures, critics and others simply exercising their right to freedom of expression – would lead to violations of other human rights.
Targeted surveillance creates incentives for self-censorship and directly undermines the ability of journalists and human rights defenders to conduct investigations and build and maintain relationships with sources of information.” No date has been fixed for the hearing of the suit.