SERAP Takes Legal Action Against Nigerian Government Over Illegitimate Phone-Tapping Regulations

The Socio-Economic Rights and Accountability Project (SERAP) has launched a lawsuit against the Nigerian government led by President Bola Tinubu, claiming that it has not retracted the clearly unlawful mass phone-tapping regulations, referred to as the 'Lawful Interception of Communications Regulations, 2019.'

This lawsuit arises following allegations made by former Kaduna State Governor, Nasir El-Rufai, who asserted that the National Security Adviser (NSA), Nuhu Ribadu, had his phone conversations intercepted. El-Rufai reportedly stated, 'The NSA’s call was tapped. They do that to our calls too, and we heard him saying they should arrest me.'

Filed last Friday under case number ECW/CCJ/APP/11/26 at the ECOWAS Community Court of Justice in Abuja, SERAP seeks a ruling declaring the government's inaction regarding the withdrawal of the Interception of Communications Regulations as unlawful and a breach of Nigeria's obligations to international human rights standards.

Furthermore, SERAP requests a judgment stating that the government's failure to rescind these regulations amounts to an official approval of unlawful mass phone-tapping practices, which violate legal principles, democratic norms, and the right to personal privacy.

Additionally, the group demands court orders that would obligate the Nigerian government to promptly withdraw the Interception of Communications Regulations and initiate legislative processes that align any future interception laws with Nigeria's international human rights responsibilities.

The lawsuit argues that these regulations create a far-reaching mass phone- tapping framework that infringes upon the human rights guaranteed to Nigerians by both domestic and international law, including rights to privacy and freedom of expression.

SERAP emphasizes that when authorities wield powers affecting fundamental human rights in secrecy and without independent oversight, the potential for arbitrary misuse greatly increases.

According to SERAP, surveillance tactics lacking stringent necessity, proportionality, and independent judicial oversight are prone to being weaponized against political adversaries, journalists, civil society members, and those monitoring elections.

SERAP further posits that the regulations present alarming implications as the nation approaches the 2027 general elections, warning that expansive and poorly safeguarded interception powers pose a genuine risk of abuse during sensitive political periods.

The lawsuit, represented by SERAP's legal team including Kolawole Oluwadare, Oluwakemi Oni, Valentina Adegoke, and Maryam Mumuni, states that 'Secret surveillance and bulk data collection create a persistent risk of misuse, profiling, and abuse, especially given the advanced technologies available to state authorities.'

It further contends, 'The mere retention or storage of personal data related to an individual's private life constitutes an infringement of this right, regardless of whether the data is accessed or utilized thereafter.'

In a politically charged atmosphere, even the belief that private communications are under scrutiny can stifle political organization, investigative journalism, and efforts to mobilize voters.

The regulations offer excessively broad and ambiguous powers to intercept communications based on various justifications such as 'national security,' 'economic wellbeing,' and 'public emergency,' without appropriate judicial safeguards, independent oversight, transparency, or effective recourse.

SERAP maintains that free and fair elections rely on secure communications, protected journalistic sources, and robust public debate. Any inappropriate use of collected data for intimidation, political leverage, or disinformation could critically undermine the right to political engagement and electoral integrity for Nigerians.

As the 2027 elections draw closer, SERAP argues that interception powers need to be narrowly defined, subject to prior independent judicial approval, and underpinned by effective recourse measures. In the absence of stringent safeguards, these regulations threaten the rights to privacy, freedom of expression, and the credibility of Nigeria's democratic process.

Restrictions on privacy rights must strictly adhere to the principles of legality, necessity, and proportionality. The Regulations fall short of all three standards, normalizing surveillance as a standard practice by the state while undermining the presumption of privacy, rendering interception lawful only under the stipulated conditions.

The Office of the United Nations High Commissioner for Human Rights has articulated, 'Mass surveillance programs based on indiscriminate and blanket collection of personal data are fundamentally arbitrary and can never fulfill the requirements of legality, necessity, and proportionality.'

The Nigerian government is obliged to implement clear legislation, effective safeguards, independent oversight, and accessible remedies to avert abuses. This responsibility extends beyond state agencies to encompass private entities, including telecommunication firms and tech companies.

The Nigerian Communications Commission (NCC), while allegedly acting under section 70 of the Nigerian Communications Act, 2003, adopted the 'Lawful Interception of Communications Regulations, 2019.'

Regulation 4 authorizes extensive discretion in interception to the National Security Adviser and the State Security Services, with little clarity regarding the scope or boundaries of that discretion.

This provision is applicable to both domestic and international communications and grants blanket protection to licensees acting 'in good faith.' Such broadly defined powers heighten the risk of abuse, including political exploitation.

The ambivalence in the regulations leads to significant legal issues. Regulation 4(1) confines interception powers to the NSA and the SSS, while Regulation 12(1) reaffirms this limitation.

However, Regulation 23, concerning 'Interpretation,' expands the list of ‘authorized agencies’ to include other bodies like the Nigeria Police Force, National Intelligence Agency, Economic and Financial Crimes Commission, National Drug Law Enforcement Agency, and any further bodies designated by the Commission.

This ambiguity and lack of legal clarity render the Regulations unpredictable and susceptible to arbitrary enforcement and misuse.

By allowing the Commission to unilaterally extend the list, Regulation 23 effectively grants unrestricted administrative power, violating constitutional privacy protections under Section 37 of the Nigerian Constitution and Nigeria's international human rights obligations.

This regulatory vagueness undermines the rule of law, diminishes accountability measures, and heightens the likelihood of abuse, particularly during politically sensitive situations or elections. Establishing precise, narrowly defined statutory limits is essential whenever state authorities are authorized to intrude upon private communications.

Regulation 8 is particularly concerning, as it allows interception without a warrant in instances involving consent, threats to life, or actions deemed as occurring in the 'ordinary course of business.' These criteria are overly broad and evidently prone to abuse.

Where warrants are deemed necessary, applications are processed ex parte, lacking adversarial protections. The bases for invocation like 'national security' and 'economic wellbeing' are inadequately defined, contradicting principles of legality and predictability.

Moreover, the Regulations do not mandate informing individuals who have undergone surveillance, whether during or post-interception. This lack of notification severely hampers the ability of individuals to contest unlawful surveillance.

Protecting private communications is essential for personal development and forms part of individuals' intimate sphere. In today's digital context, safeguarding these rights necessitates exceptional vigilance.

The Regulations aim to establish a 'legal and regulatory framework for lawful communication interception in Nigeria' as stated in Regulation 2.

Regulation 6 permits retention of intercepted communications for the duration of an investigation and allows archiving for up to three years. However, it fails to provide clear conditions relative to storage, destruction, and oversight of retained data.

Regulation 9 obliges licensees and private persons to share encryption keys and access mechanisms. This requirement compromises cybersecurity for all stakeholders and neglects to ensure protections for journalists, attorneys, and human rights advocates whose communications necessitate heightened security.

Regulations 10 and 11 compel licensees to install interception devices and restrict services that lack interception capabilities. Such provisions effectively dissuade the adoption of privacy-enhancing technologies and undermine secure communications, thereby impeding privacy rights, freedom of expression, and association.

Emergency interception authorities granted under Regulation 12 allow for warrantless surveillance based on broad justifications, encompassing 'national security' and 'organized crime,' without obtaining prior judicial consent. These vague national security grounds contravene the right to privacy.

Regulations 13 to 15 provide extensive entry, seizure, and execution powers without independent review mechanisms in place. Additionally, Regulation 19 limits reporting solely to the Attorney General of the Federation, a political appointee, lacking independent parliamentary or judicial scrutiny.

While SERAP concedes the government’s role in addressing national security and organized crime, these goals must be pursued within the bounds of constitutional and international human rights frameworks. The regulations in question are neither necessary in a democratic society nor proportional.

As of now, no date has been set for the lawsuit’s hearing.