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.1 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.2 This presupposes that any planned invasion of any citizen’s
1
See the 1999 Constitution of the Federal Republic of Nigeria.

2
See the 1992 Constitution of the Republic of Ghana.
privacy must be sanctioned by the court of law. Like Nigerians and
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.”3 Similar provisions run through all national
constitutions in African countries, for a perusal of privacy
protections in Africa shows that the majority of 53 states have
ample statutes that seek to give coverage to data protection and
privacy, also partly because of considerations for cross-border data
flows.4

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 privacy rights may
continue unabated. Of Africa’s 53 countries, only South Africa,
Zimbabwe, Uganda, and Liberia have signed this all-important
piece of legislation into law, leaving Liberia, with a population of
4 million, as the only West African country to have embraced
some semblance of openness in the running of government affairs.
3
See also the 1991 Constitution of Burkina Faso (the English version as amended in 2002).

4
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)
The law became operative in South Africa in 2000, Zimbabwe in
2002, Uganda in 2006, and Liberia in 2010.5

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. While Africa tarries,
over 85 countries around the world have signed and incorporated
variants of this legislation into their body of laws, with Sweden’s
in 1766 being the oldest in history.6 Among other things, freedom
of information legislation has guaranteed citizens in these countries
access to data held by the state, thus establishing “the right to
know” – barring standard exceptions. In the United Kingdom, it
was enacted into law in 2006 during the administration of Tony
Blair. It is also in place in France since 1978, Canada since 1983
and Germany since 2005, among other countries. As for the United

5
While several countries of the world have added this important legislation to their statute books, Africa
lags behind, watering the impression that the world’s poorest continent prefers shadiness as opposed to
transparency in the handling of human affairs. For a detailed list of countries where this legislation is in
place, see http://en.wikipedia.org/wiki/Freedom_of_information_legislation (accessed on December 12,
2010)

6
See William R. Staples’ Encyclopedia of Privacy, 2007.
States, it was the reign of Lyndon B. Johnson that made the
freedom of information law a reality in 1966. And since then, there
have been further amendments to the law in 1996, 2002 and 2007,
apart from the fact that all the states in the US and the District of
Columbia have similar laws governing access to public
information.