INTRODUCTION

The right to privacy is a fundamental human right enshrined in numerous constitutions of the countries of the world and into the international human rights instruments. It is essential to the protection of social dignity and forms the foundation of any democratic society. It also supports and reinforces other rights, such as freedom of expression, information, and association. The right to privacy embodies the presumption that individuals should have an area of autonomous development, interaction, and liberty, a “private sphere” with or without interaction with others, free from arbitrary State intervention and excessive unsolicited intervention by other uninvited individuals. This article aims to examine the provisions that guarantee the right to privacy under the Nigerian 1999 Constitution (as amended), international instruments applicable to Nigeria and the constitutional limitations of the right to privacy.

MEANING AND SCOPE OF RIGHT TO PRIVACY

According to Olomojobi,[1] the right of privacy implies “the exclusion of the public eye from prying into an individual’s affair. A crucial aspect of the right to privacy entails the right to protect one’s image and personality and the right to have unfettered access to control one’s zones of exclusivity, space, and confidential information. The right to privacy lies within the realm of self-ownership. It is the moral liberty of doing what an individual deems fit to be done with his/her individualism and keeping others outside the sphere of his/her self-ownership.” It also refers to the concept that one’s personal information is protected from public scrutiny.[2]

In NWALI V. EBSIEC & ORS[3] the court held that section 37 of the 1999 Constitution provides that “the privacy of citizens, their homes, correspondence, conversations and telegraphic communication telephone is guaranteed and protected”. It is clear from the text of the provision that it specifically mentioned the types of privacy that it protects. Five of them are listed therein as follows- 1. The privacy of citizens 2. The privacy of their homes 3. The privacy of their correspondence 4. The privacy of their telephone conversations 5. The privacy of their telegraphic communication. This was restated by the Court in Federal Republic of Nigeria V. Daniel (2011) 4 ELR 4152 where the court held “Undoubtedly, by virtue of the Provision of Section 37 of the 1999 Constitution, the privacy of every Nigerian citizen, the home, correspondence, telephonic and telegraphic communications are cherishingly guaranteed and protected…”

RIGHT TO PRIVACY UNDER THE 1999 CONSTITUTION

In Nigeria, the right to privacy is one among many of the fundamental human rights guaranteed by the 1999 Constitution of Nigeria. Section 37 of the 1999 Constitution provides that: “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”

According to Lloyd Megwara,[4] the right to privacy guaranteed by the Constitution entails the right to private life encompassing the right to live in isolation of others, (a reclusive life if you like), the right to protect one’s social, interpersonal relationships, (inclusive of sexual and marital relationships) the right of concealment of one’s nudity, (body anatomy) from public glare and the right of an individual over his own body (inclusive of what goes in and out of his body). It follows that the right to privacy implies the right to protect one’s body from unauthorized intrusion or invasion.

CONSTITUTIONAL LIMITATIONS OF THE RIGHT TO PRIVACY

The constitution under section 45 contemplated the restriction on and derogation from fundamental human rights under the chapter. The section reads:

“Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom or other persons”.

Section 45 received judicial endorsement in the case of OJOMA V. STATE[5] where the court held:

“The invasion of the house of the native doctor (Chibuike) is unlawful as it violates his fundamental human right to the privacy of his person and his home guaranteed him by S.37 of the 1999 Constitution of Nigeria. The only permitted derogation from this right is one provided for in law in the interest of defence, public safety, public order, public morality, or public health, or for the purpose of protecting the rights and freedom of other persons as required by S. 45(1) of the same 1999 Constitution of Nigeria. Privacy at its most fundamental level is the right to be left alone. This suggests that a zone surrounds every individual within which he or she should be protected from intrusion by others. It is the most valuable of all rights. The 1999 Constitution in S. 37 absolutely guarantees the privacy of the citizen, his home, correspondence, telephone conversations and telegraphic communications and S. 45(1) allows a law to derogate from it only if it is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality, or public health or for the purpose of protecting the rights and freedom of other persons. Learned Counsel for the appellant has not referred to any law that enabled them to invade that house the way they did. For police crime prevention and control action in entering a building or the space of a person as in this case to be brought under the protection of S.45(1) of the 1999 Constitution, it must be considered a search in accordance with an enabling law.”

Therefore, based on the above authorities, the right to privacy guaranteed by section 37 of the 1999 Constitution is restricted to the following circumstances:

the interest of defence.
public safety.
public order.
public morality.
public health; or
to protect the rights and freedom of other persons

INTERNATIONAL REGIMES ON THE RIGHT TO PRIVACY

Some important international instruments applicable in Nigeria will be highlighted to provide the meaning and scope of the right to privacy.

Universal Declaration of Human Rights

Article 12 of the Universal Declaration of Human Rights[6] guarantees the right to privacy for everyone. It provides that No one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

International Covenant on Civil and Political Right

Article 17 of the International Covenant on Civil and Political Right[7] provides follows:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence, nor to unlawful attacks on his honour and reputation.

Everyone has the right to the protection of the law against such interference or attacks.

Convention on the Rights of the Child

Article 16 of the Convention on the Rights of the Child,[8] gives the right to privacy to every child in the world as follows:

No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home, or correspondence, nor to unlawful attacks on his or her honour and reputation.
The child has the right to the protection of the law against such interference or attacks.

The importance of the right to privacy can never be overemphasized. As can be noted from the above instruments, no there is no limitation clause to the right to privacy, this highlights the significance of the right to privacy in our day-to-day life.

African Charter on Human and Peoples’ Rights

The African Charter on Human and Peoples’ Rights does not contain a direct provision which is directly protecting the right to privacy. However, the African Charter on the Rights and Welfare of the Child[9] provides for every child in Africa with the right to privacy in Article 10 which reads:

No child shall be subject to arbitrary or unlawful interference with his privacy, family, home, or correspondence, or to the attacks upon his honour or reputation, provided that parents or legal guardians shall have the right to exercise reasonable supervision over the conduct of their children. The child has the right to the protection of the law against such interference or attacks.

CONCLUSION

The right to privacy is a right of people to live to the exclusion of others and the ability to control the boundaries of public interference. As sacrosanct as this right is to the foundation of any democratic society, the right is accompanied by certain derogation and restriction to ensure that the society is governable and peaceful.

[1] Olomojobi, Yinka, Right to Privacy in Nigeria (October 31, 2017). Available at SSRN: https://ssrn.com/abstract=3062603 or http://dx.doi.org/10.2139/ssrn.3062603

[2] Right to Privacy: Constitutional Rights & Privacy Laws | Live Science assessed 4th June 2021.

[3] (2014) LPELR-23682(CA)

[5] (2014) LPELR-22942(CA)

[6] Universal Declaration of Human Rights | United Nations assessed 4th June 2021.

[7] Ch_IV_04.pdf (un.org) assessed 4th June 2021.

[8] Convention on the Rights of the Child text | UNICEF

[9] 36804-treaty-african_charter_on_rights_welfare_of_the_child.pdf (au.int) assessed 4th June 2021.