Legal Bulwarks for Privacy

Unfortunately, until law courts begin to test and set the limits on the need to

balance national security with people rights, the prospect appears bleak across

West African states. Though the various national constitutions make provisions for

protection of fundamental human rights, including privacy, all the statutes predated

the new challenge posed by the mobile communication instrument. Perhaps, this

explains why security agents often overzealously swoop on suspects whenever

there is a security challenge, using the exigency of the situation as an excuse,

particularly if it is suspected that the crime is aided by telephone conversations or

text messages – as in the case of Nigeria during the 2010 independence

anniversary.

For example, Nigerians, who account for 53 percent of West African mobile

telephone subscriptions, get bulwarks regarding privacy of their homes,

correspondence, telephone conversation and telegraphic communications under

articles 37 and 39(3) (a) of 1999 constitution. In Ghana, section 18(2) of its 1992

constitution abhors interference with the privacy of citizens’ home, property,

correspondence and communication except in accordance with the law. This

presupposes that any planned invasion of any citizen’s privacy must be sanctioned

by the court of law. Like Ghanaians, citizens of Burkina Faso also get cover under
article 4 of their constitution which says “the residence, the domicile, private and

family life, secrecy of correspondence of every person are inviolable.” A perusal of

privacy protections in Africa, nay West Africa, shows that the majority of 53 states

have ample statutes that seek to give coverage to data protection and privacy,

chiefly of because cross-border data flows.1

While the legal ground rules remain unclear about how to marry security

needs with respect for human rights, the absence of freedom of information act -

which seeks to open up government to the citizenry, abolish secrecy in the running

of government business and endue the people with trust in their government - gives

weapons to fears that infraction on rights may continue unabated. Of all 53

countries in Africa, only South Africa, Zimbabwe, Uganda, and Liberia have

signed into law this all-important piece of legislation, leaving Liberia, with a

population of 4 million, as the only West African country to have embraced

openness in the running of government affairs. It became operative in South Africa

in 2000, Zimbabwe in 2002, Uganda in 2006, and Liberia in 2010.2

1
For detailed information on citizens’ privacy rights as well as data and privacy protections
in Africa, see http://lawbrain.com/wiki/Africa_Privacy_Law (accessed on November 21, 2010)
2
While several countries of the world have added this important legislation to their statute
books, Africa lags behind, watering the impression that the continent prefers shadiness as
opposed to transparency; see
http://en.wikipedia.org/wiki/Freedom_of_information_legislation
 The rest have been dillydallying over the issue. Like in many other countries

in Africa, the Nigerian media and civil society groups have literally been on the

war path with members of the ruling class who often cringe that allowing such a

law to see the light of the day will invite chaos and expose national security.

Unfortunately, what this means, in effect, is that millions of mobile phone

subscribers in West Africa will continue to exist at the mercy of overzealous

government agencies.