Stop!!! Come down!! Wey your phone!!? Open am make I see……
An average Nigerian (youths most especially) at some point will most likely have experienced the scenario portrayed above or at least heard a narration of how security agents at some point attempted or searched through peoples’ phones. Thus, it’s neither a new thing nor is it a fable that at some point in our life we or a person we know or heard of has been a victim of harassment by the security agencies in Nigeria.
The Nigerian Police, particularly the Special Anti Robbery Squad (under whatever guise which subsequently gave rise to the End SARS protest of October, 2020), the Economic and Financial Crimes Commission and their likes have been guilty of this trend, even as Nigerians have the right to privacy as enshrined in Section 37 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). There is no gainsaying that policing and maintenance of law and order is an arduous task and security agencies are all trying to carry out their duties and roles as provided in the laws establishing them. However, in carrying out these duties so provided, they exceed the limits of their powers as provided for in the laws establishing them.
Various reasons ranging from lack of knowledge of the law by security operatives to the lacuna, loopholes and ambiguities in our laws.
For the purpose of this write up, the discussion of the right to privacy and the search of phones by security agents in Nigeria will be limited to Nigerian Police and the Economic Financial Crimes Commission.
Legality of Search of Phones by the Nigerian Police Force
Section 3 of the Police Act Establish the Nigerian Police Force and their general duties is provided for under Section 4, These general powers are:
- To preserve the law and order;
- Prevention and detection of crime;
- To protect life and property; and
- To enforce all laws and regulations which they are directly charged with.
It must be noted that the police in carrying out the above listed powers are also empowered to carry out military duties within and outside Nigeria as may be required by them.
Moreover, in furtherance of their duties as spelt out by Section 4 of the Police Act, the police may conduct stop and search on persons or property so long as there is reasonable ground to believe that such is an object of crime.
The big question however goes thus; can the Police search through people’s phones on the road or accost them and demand their phone(s) be unlocked?
There is a big clog on the rights the Police have to search, as the privacy of citizens, their homes, their telephone conversations and Telegraphic communications are guaranteed and protected by Section 37 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended). It is also important to note that Section 45 of the same constitution limits this right.
Thus, it behooves on us to ask certain questions; to what extent is the right limited? On what grounds will the limitations come to force? Does this give the police wide discretion on violating the right to privacy?
Section 45(1) of the Constitution provides that in the interest of defense, public safety, public order, public morality or public health and protection of rights and freedom of other persons that the provision of Section 37 shall be limited in relation to any law that reasonably justifies its limitation in a democratic society.
Thus, in relation to the above limitation, does this empower a police officer to stop a person and ask that his phone which is deemed to be part of his private life be ransacked?
The provisions of Section 9 of the Administration of Criminal justice Act (ACJA) and Section 29 of the Police Act (which empowers them to conduct search of persons) does justice to the question.
A thorough read of the provision of Section 9 of the ACJA shows that a police officer can conduct search on persons (which include things found on him) without warrant of search, however, same can only be conducted when such person have been arrested. Also, Section 29 of the Police Act allows Police Officers to detain and search a person whom they reasonably suspect to have in his or her possession stolen property or that which is otherwise unlawfully obtained.
The combined effect of the of the above provisions shows that a Police Officer can only search a person where there is a reasonable ground to believe that the person have in his possession an unlawful object or object used to commit crime after making it known to the person that he is being detained or arrested on such grounds.
The conclusion that can be drawn from the above provision is that the police ordinarily do not have power to stop a person and search his or her phone nor do they have the power to go through the phone of a private individual except same person has been arrested or detained on justifiable reasonable grounds of having in their possession an unlawful object or object to be use in furtherance of committing crime.
Search of Phones by the Economic and Financial Crimes Commission (EFCC)
Section 13 of the Economic and Financial Crimes Commission Establishment Act, 2004 spells out the duties of the units comprising the commission. Most notable of these functions in relation to this topic is the duty of investigation of assets and properties of persons arrested for committing any offence under the Act. This also aligns with the provision of Section 9 of ACJA which requires that search of apparels can only be done in respect of persons arrested.
Section 37 and 45 of the Constitution of the Federal Republic of Nigeria is also in line with this requirement as it guarantees privacy.
A thorough consideration of the above stated provisions of various laws, it can be deduced and will be right to conclusively say that Security Agents cannot arbitrarily search mobile phones.
However, in event of a Policeman or any other security agent asking to go through your phones, the following tips are necessary:
- Do not panic.
- Do not struggle with an armed officer.
- Make your point clear with calmness
- Show some respect.
- Ask if a specific petition has been written against you that your phone is being used to commit crime.
- Bring to his notice the right to privacy as enshrined in Section 37 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
- If he insists, ask that record be taken as to the time and event culminating to the search of phone.
Written by Muideen O. Adubiaro