Socio-Economic Rights and Accountability Project sues Tinubu administration at regional tribunal for refusing to repeal controversial regulations allowing widespread mobile surveillance

The Socio-Economic Rights and Accountability Project, SERAP, has taken the government of President Bola Tinubu to court over its failure to repeal the "Lawful Interception of Communications Regulations, 2019," which the group considers patently unlawful.

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This lawsuit comes on the heels of allegations made by former Kaduna State Governor, Nasir El-Rufai, that the phone conversation of the National Security Adviser, Nuhu Ribadu, was intercepted, with Mr. El-Rufai claiming that his own calls are also being tapped.

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SERAP's lawsuit, filed at the ECOWAS Community Court of Justice in Abuja, bears the suit number ECW/CCJ/APP/11/26 and was filed last Friday, seeking a declaration that the government's failure to withdraw the regulations is a violation of Nigeria's international human rights obligations.

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The group is also seeking a declaration that the government's inaction on the regulations amounts to an endorsement of unlawful mass phone-tapping, which violates the rule of law, democratic principles, and the right to privacy.

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SERAP is further seeking an order compelling the Nigerian government to immediately withdraw the regulations and initiate a legislative process to ensure that any future interception regulations align with Nigeria's international human rights obligations.

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According to SERAP, the regulations establish a sweeping mass phone-tapping regime that infringes on Nigerians' constitutionally and internationally guaranteed human rights, including the right to privacy and freedom of expression.

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The group argues that where powers affecting fundamental human rights are exercised in secrecy and concentrated in political authorities without independent supervision, the risks of arbitrariness are substantial.

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SERAP also notes that surveillance measures lacking strict necessity, proportionality, and independent judicial oversight can easily be used against political opponents, journalists, civil society actors, and election observers.

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The regulations, according to SERAP, raise serious concerns as Nigeria approaches the 2027 general elections, as broad and weakly safeguarded interception powers create a real risk of abuse during politically sensitive periods.

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The lawsuit, filed on behalf of SERAP by its lawyers, Kolawole Oluwadare, Oluwakemi Oni, Valentina Adegoke, and Maryam Mumuni, states that secret surveillance and bulk data collection create a permanent risk of misuse, profiling, and abuse.

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The mere retention or storage of personal data relating to an individual's private life constitutes an interference with this right, whether or not the data is subsequently accessed or used, according to the lawsuit.

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In an electoral climate, even the perception that private communications are being monitored can chill political organising, investigative reporting, and voter mobilisation, the lawsuit argues.

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The regulations grant overly broad and vague powers to intercept communications on grounds such as national security, economic wellbeing, and public emergency, without adequate judicial safeguards, independent oversight, transparency, or effective remedies.

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Free and fair elections depend on confidential communications, protected journalistic sources, and open democratic debate, and any misuse of intercepted data for intimidation, political advantage, or disinformation would fundamentally undermine Nigerians' right to political participation and electoral integrity.

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As the 2027 elections approach, interception powers must be narrowly defined, subject to prior independent judicial authorisation, and backed by effective remedies, the lawsuit states.

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Without robust safeguards, these regulations risk threatening privacy rights, freedom of expression, and the credibility of Nigeria's democratic process, according to SERAP.

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Any restriction on the right to privacy must strictly comply with the principles of legality, necessity, and proportionality, which the regulations fail to do, the lawsuit argues.

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The regulations normalise surveillance as routine state practice and invert the presumption of privacy by criminalising interception except as permitted under the regulations, thereby undermining the right to privacy.

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The Office of the United Nations High Commissioner for Human Rights has made it clear that mass surveillance programmes based on indiscriminate and blanket collection of personal data are arbitrary per se and can never satisfy the requirements of legality, necessity, and proportionality.

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The Nigerian government has a positive obligation to adopt clear laws, effective safeguards, independent oversight mechanisms, and accessible remedies to prevent abuse, the lawsuit states.

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The Nigerian Communications Commission adopted the "Lawful Interception of Communications Regulations, 2019" while exercising its powers under section 70 of the Nigerian Communications Act, 2003.

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Under Regulation 4, broad discretionary interception powers are granted to the National Security Adviser and the State Security Services, with minimal clarity regarding the scope or limits of such discretion, creating significant risks of abuse.

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The provision also extends to communications within and outside Nigeria and grants blanket immunity to licensees acting "in good faith," which further increases the risk of abuse.

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The inconsistencies in the regulations create serious legal concerns, as Regulation 4(1) limits interception powers to the National Security Adviser and the State Security Services, while Regulation 12(1) reiterates this restriction.

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However, Regulation 23 on "Interpretation" expands the category of "authorised agencies" to include additional bodies such as the Nigeria Police Force, National Intelligence Agency, Economic and Financial Crimes Commission, National Drug Law Enforcement Agency, and any other agency the Commission may designate, creating ambiguity and undermining legal certainty.

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Nigerians cannot reasonably know which authorities are empowered to intercept their communications, making the regulations unpredictable and prone to arbitrary application and abuse, the lawsuit argues.

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By delegating authority to the Commission to expand the list at its discretion, Regulation 23 effectively grants unfettered administrative power, contrary to constitutional guarantees of privacy under Section 37 of the Nigerian Constitution and Nigeria's binding international human rights obligations.

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Regulation 8 is particularly troubling, as it permits interception without a warrant in situations involving consent, threats to life, or actions in the "ordinary course of business," which are overly broad and clearly susceptible to abuse.

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Even where warrants are required, applications are made ex parte and without adversarial safeguards, and grounds such as "national security" and "economic wellbeing" are insufficiently defined, undermining the principles of legality and foreseeability.

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The regulations also fail to require notification of individuals who have been subjected to surveillance, either during or after interception, which severely undermines the ability of individuals to challenge unlawful surveillance.

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Private communications form part of individuals' intimate sphere and personal development, and protecting these rights requires exceptional vigilance in the digital age, the lawsuit states.

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The regulations supposedly establish a "legal and regulatory framework for the lawful interception of communications in Nigeria" under Regulation 2, but this framework is fundamentally flawed.

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Under Regulation 6, intercepted communications may be retained for the duration of an investigation and archived for up to three years, with no clarity on conditions governing storage, destruction, and oversight of retained data.

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Regulation 9 compels disclosure of encryption keys and access mechanisms by licensees and private persons, which weakens cybersecurity for everyone and fails to provide safeguards for journalists, lawyers, and human rights defenders whose communications require heightened protection.

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Regulations 10 and 11 require licensees to install interception equipment and prohibit services without interception capacity, which effectively discourages privacy-enhancing technologies and undermines secure communications, thereby chilling freedom of privacy, expression, and association.

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Emergency interception powers under Regulation 12 allow warrantless surveillance on broad grounds, including "national security" and "organised crime," without prior judicial authorisation, which violates the right to privacy.

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Regulations 13 to 15 grant extensive powers of entry, seizure, and execution without establishing an independent review mechanism, and Regulation 19 limits reporting to the Attorney General of the Federation, a political appointee, without independent parliamentary or judicial oversight.

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While SERAP acknowledges the government's responsibility to address national security and organised crime, such objectives must be pursued within constitutional and international human rights limits, which the regulations fail to do.

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No date has been fixed for the hearing of the suit.