ACHIEVING A BALANCE BETWEEN NATIONAL SECURITY AND THE RIGHT TO DATA PRIVACY IN NIGERIA

ABSTRACT

Some parts of Nigeria have been the target of terrorist attacks for some years now and as a result, Nigeria has employed several measures to combat terrorism. One such measure is the enactment of laws limiting the right to privacy to enforce national security. These include legislation such as the Cybercrime Act 2015, Nigerian Communications Act 2003, and the Lawful Interception of Communication Regulation 2019, which grant the state power to access personal data for purposes related to ensuring the enforcement of national security. In Nigeria, the extant legal framework on data protection does not sufficiently guarantee protection from unlawful and arbitrary interference. The aim of the study was to determine how the right to data privacy can be secured in relation to the enforcement of national security in Nigeria. The study, through the doctrinal research methodology, analysed the legal framework for data protection in Nigeria from a human rights perspective to find out whether there are adequate provisions to secure the right to data privacy while enforcing national security. In doing this, the study analysed key provisions of the data protection law in Nigeria with the standards on the protection of the right to data privacy derived from international human rights instruments such as the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966, the European Convention on Human Rights (ECHR) 1950 among others. The study also compared the legal framework limiting the right to data privacy in Nigeria with those of the United Kingdom and South Africa. The reason for the choice of the United Kingdom is that Nigeria and the United Kingdom have similar legal systems and they both operate the common law system. South Africa was chosen because it has one of the most comprehensive data privacy legislation in Africa. Nigeria and South Africa are in similar developmental stages (according to World Bank rating) and they share similar national security challenges. The insights that were obtained from the comparison informed suggested reforms to the legal framework for data protection in Nigeria. The study found that the laws limiting the right to data privacy in Nigeria do not align with international human rights principles and standards. These laws do not contain sufficient safeguards to prevent arbitrary intrusions on the right to data privacy while enforcing national security. Independent oversight systems and means of redress are either non-existent or ineffective. These have contributed to a lack of accountability for unlawful or arbitrary interference with the right to data privacy. The study proposed legal considerations that Nigeria may adopt to ensure that in enforcing national security, data privacy/protection is guaranteed. A human rights-based approach to data protection in Nigeria, specifically, one that adopts the protections outlined in international human rights instruments, will help advance the right to data privacy by placing the state's obligations concerning human rights at the core of policy enforcement of national security in Nigeria.