By Ataguba Aboje

In the contemporary digital landscape, Nigeria grapples with a nuanced challenge: balancing the imperative to combat financial crimes facilitated by new technologies with the imperative to uphold constitutionally protected civil liberties. The recent legal clash between Nigeria and cryptocurrency exchange Binance has brought this delicate equilibrium to the forefront.

On February 29, 2024, the Nigerian Economic and Financial Crimes Commission (EFCC) sought an obtained a court order compelling Binance to disclose data on all its Nigerian users, citing concerns over potential money laundering and illicit fund flows through the platform. Notably, this order was granted on an ex parte basis, denying Binance’s users an opportunity to present their case.

While the EFCC’s mandate to combat corruption is legitimate, the court’s ruling may have inadvertently paved the way for unconstitutional overreach and unchecked state surveillance under the guise of law enforcement.

Nigeria’s Constitution, particularly Section 37, robustly protects citizens’ privacy as a fundamental right, encompassing “the privacy of citizens, their homes, correspondence, telephone conversations, and telegraphic communications.” This constitutional guarantee has been expansively interpreted by the Supreme Court, extending its protection to thoughts, beliefs, relationships, and personal data (see Medical and Dental Practitioners Disciplinary Tribunal vs. Okonkwo, 2001).

This jurisprudential stance reflects Nigeria’s dedication to upholding civil liberties within its constitutional democracy. Any encroachment on these fundamental privacy rights must undergo rigorous legal scrutiny and oversight to avoid setting dangerous precedents.

The legal doctrine of “reasonable suspicion” acts as a crucial safeguard against arbitrary privacy violations by the state. Law enforcement agencies must demonstrate “a particularized and objective basis, supported by specific and articulable facts” linking an individual to suspected criminal activity before intruding into their private affairs (see Rev. Paul Enanuga & Ors v Hon. Nseobasi Sampson, 2012).

This standard prevents indiscriminate data gathering, ensuring that only individuals with credible suspicions against them undergo lawful scrutiny, thereby upholding privacy as the norm.

However, an analysis of the EFCC’s application reveals concerning signs of overreach. While the agency claimed to have identified “some users” potentially involved in money laundering on Binance, this rationale falls short of justifying data demands for all Nigerian users of the platform.

The vast majority of individuals affected by this order were not under individualized reasonable suspicion, as acknowledged by the EFCC. Yet, Honourable Justice Emeka Nwite of the Federal High Court granted an expansive ex parte order resembling a “fishing expedition,” disregarding due process rights of the several thousands of Binance users who had no legal representation.

The Court of Appeal’s ruling in Ubochi v. Ekpo (2014) reinforces the principle that reasonable suspicion necessitates factual grounds or information satisfying an objective observer that the person in question may have committed an offense. The lack of such grounds for several thousands of Binance users underscores the problematic nature of the court’s order.

A Dangerous Precedent?

This sets a potentially dangerous precedent, allowing unbounded data trawling without adherence to reasonable suspicion principles. Critics argue that such actions may lead to routine state intrusion into citizens’ digital privacy without substantive evidence, contravening Nigeria’s constitutional safeguards.

Consider the troubling prospect of this precedent being leveraged by the Economic and Financial Crimes Commission (EFCC) to demand the data of all customers of a financial institution under suspicion of financial impropriety among a select few. This scenario raises significant concerns about the potential for overreach and the erosion of privacy rights on a broader scale.

If such a precedent were to be applied in a generalized manner, it could set a dangerous precedent for mass data collection without sufficient individualized suspicion. The implications are profound, as it would effectively subject millions of innocent individuals to unwarranted scrutiny and intrusion into their financial affairs.

This approach not only undermines the fundamental principle of privacy but also runs counter to established legal norms that require a specific and articulable basis for targeting individuals suspected of wrongdoing. It opens the door to arbitrary data requests that lack the necessary legal justification, thereby weakening the safeguards meant to protect citizens from unjustified state interference.

Moreover, the potential fallout extends beyond individual rights to encompass broader societal impacts. Such unchecked data demands can foster a climate of fear and mistrust, deterring individuals from engaging in legitimate financial activities due to concerns about privacy violations and government overreach.

This scenario underscores the critical need for robust legal frameworks and judicial oversight to ensure that law enforcement agencies operate within the bounds of the law and respect citizens’ privacy rights. It also highlights the importance of upholding the principle of proportionality, wherein any data requests must be narrowly tailored to address specific and credible suspicions, rather than casting a wide net that ensnares countless innocent individuals.

In essence, the potential ramifications of extending this precedent to other contexts serve as a stark reminder of the delicate balance that must be maintained between law enforcement objectives and the protection of individual liberties in a democratic society governed by the rule of law.

While combating financial crimes remains crucial, it cannot justify bypassing core privacy protections. A more balanced approach could have involved compelling data disclosure only for specific Binance accounts flagged as suspicious based on reasonable grounds, respecting innocent users’ privacy rights.

To uphold Nigeria’s democratic ideals in the digital age, a nuanced framework is essential, encompassing:

Robust judicial oversight ensuring law enforcement adheres strictly to constitutional privacy principles and reasonable suspicion standards before sanctioning data disclosures.
Clear statutory safeguards outlining due process for digital data requests, prioritizing data minimization to protect innocent citizens.
Transparency and public discourse on state digital surveillance policies, subjecting them to multi-stakeholder scrutiny.
Nigeria stands at a critical juncture where technology intersects with age-old tensions between state power and individual liberties. By navigating this terrain with prudence and adherence to constitutional values, Nigeria can serve as a beacon for safeguarding democratic principles in the digital era.

The path forward necessitates meticulous governance, with the integrity of Nigeria’s constitutional democracy depending on navigating these challenges judiciously. It is imperative to ensure the protection of citizens’ fundamental privacy rights, and the judiciary must serve as a bulwark against governmental overreach rather than enabling it.

As we navigate the complexities of digital governance and law enforcement in the modern age, the role of the courts becomes paramount. They must uphold the principles of due process, fairness, and constitutional adherence, serving as a check against arbitrary exercises of state power.

At the heart of this issue is the delicate balance between security imperatives and individual freedoms. While combating financial crimes and ensuring public safety are legitimate objectives, they must not come at the expense of basic rights and liberties guaranteed by the constitution.

The judiciary’s role as a protector of citizens’ rights cannot be overstated. It must rigorously scrutinize government actions, particularly those involving privacy intrusion and data collection, to ensure they meet legal standards and are justified by clear and specific evidence.

Moreover, the judiciary must resist any attempts to erode privacy protections or expand state powers beyond what is necessary and proportionate. This requires a steadfast commitment to upholding the rule of law and preventing executive overreach, even in the face of perceived security threats.

In essence, the court’s function is not merely to rubber-stamp government actions but to serve as a guardian of individual rights and liberties. By fulfilling this crucial role, the judiciary strengthens Nigeria’s democratic framework and safeguards the freedoms that underpin a free and just society.

Written by Ataguba Aboje, Esq

Barrister and Solicitor of the Supreme Court of Nigeria

Solicitor of the Senior Courts of England and Wales

Certified Information Privacy Europe (CIPP/E)

He can be reached at [email protected]