By Emeka Aginam

Last week in Lagos when stakeholders in the Nigerian telecoms industry gathered to discuss the draft lawful interception of communications regulations, leading voices contended that except the policy as recently released by the Nigerian Communications Commission (NCC), passes through a legislative process, Nigeria may not get the expected results.

It would be recalled that the NCC recently came up with the Draft Lawful Interception of Communications Regulation, which provides the legal and regulatory framework for the lawful interception of communications in Nigeria, and to put into effect the provisions of Section 70 of the Nigerian Communications Act.

It’s illegal
Although the President of Association of Telecommunication Companies of Nigeria (ATCON), Engr. Lanre Ajayi agreed that it is a regulatory issue, the former FCT minister, Mallam Nasir Ahmad El-Rufai who faulted the draft policy told the gathering that lawful interception of communications regulations should go through legislative process.

“Listening to other people’s conversations was therefore not only objectionable but a crime in common law jurisdictions like Nigeria. So why does our government want to listen to our telephone conversations? Why has the Federal Government committed between $40-$61 million off-budget to monitor our emails, instant messaging and social media activities?

NCC Boss, Juwah and Minister of CommTech, Johnson

“From the foregoing, it is not only unlawful for the government to invade the privacy of citizens by intercepting letters, phone conversations or emails, but a constitutional violation and therefore an impeachable offence.

“However, if the National Assembly enacts “any law that is reasonably justifiable in the interest of defence, etc then the interception may be lawful. The question that follows is whether NCA 2003 is one such law.

“As one of the fathers of the NCA 2003, I can say without any fear of contradiction that it was only meant to deregulate the telecommunications sector and no more. It was not designed or drafted to abridge the fundamental rights of Nigerians entrenched in the 1999 Constitution, and there is nowhere in the law except one of the ‘emergency provisions’ in section 148(1)c that intercepting communications was envisaged.

“The regulations have no commencement date. The title of the draft regulations contain no year of coming into effect. Many of us know that the unlawful interception of communications have been going on for years,” he explained.

Ajayi disagrees
But Engr. Ajayi who disagreed with Rufai said that regulatory process in the lawful interception of communications regulations was proper.

“Countries throughout the world have adopted legislative and regulatory requirements for providers of public and private communication services (service providers) to design and implement their networks to support authorized electronic surveillance explicitly.

“The lawyers (members of Nigeria Bar Association) are challenged to determine the legality of operation of Lawful Intervention Devices by Law Enforcement agencies when the regulation to guide the usage is still a draft” the ATCON President said.

Key concerns
With the policy lacking enabling law, the President of Association of Licensed Telecommunication Association of Nigeria, ALTON, Engr. Gbenga Adebayo said that given that the right to privacy is a constitutionally protected right, it is critical that a properly enacted Bill of the National Assembly be enacted to guide implementation of the lawful interception.

“In trying to fill the gap, the NCC’s draft regulations has sought to impose obligations on parties who are not ordinarily subject to its jurisdiction, such as judges and law enforcement agencies.

“The right of law enforcement agencies to secure access to communications in the national interest must be balanced against the equally important need to protect individual freedoms. The requisite legal framework must provide sufficient safeguards against abuse and opportunities for redress. There must also be very clear supervisory and reporting provisions.

“It is critical that network operators who implement interception in the national interest should be protected against civil and criminal liability in very clear and specific terms.

Operators’ worries
For the Director of Regulatory & Government Affairs, Airtel Nigeria, Mr. Osondu Nwokoro, the publication of these draft regulations by the NCC was an open admission by the security agencies that have been invading our privacy and constitutional rights without any legal basis. While raising concern on the cost implications on the operators, he said that , “Subject to some of the suggested amendments to the content of the draft, the NCC should properly submit it as a bill for enactment by the National Assembly. That in my opinion is the only way to have an appropriate legal and regulatory framework,” he said.

More good than evil
Speaking further on the issue, Femi Adesina, Deputy Managing Director/Deputy Editor-in-Chief, of the Sun Newspapers, who is also President of the Nigerian Guild of Editors, said:

“Without prejudice to what legal experts would say, I personally believe that the draft regulation on lawful interception has more strengths than weaknesses, and will do more good than evil. While any law, however benign, can be manipulated and used for negative ends, the LI can also help in stemming the tide of violent crimes like kidnapping, terrorism, and other anti-social acts. There are also enough provisions in the regulation to protect the citizenry, and give access to redress against unlawful acts.

“Most countries of the world have LI, and are living with it. The countries are even the better for it, and I therefore believe that this is a legislation that should be encouraged, after relevant stakeholders have dotted the Is and crossed the Ts” he explained.