186 Years a Slave! Revocation of a Will by a Subsequent Marriage and Constitutional Right to Private and Family Life | Olumide Babalola

by Legalnaija | Dec 22, 2024 | Blawg

The caption of this article was inspired by a 2013 movie (12 years a slave) where an African man who was kidnapped and sold into slavery in the US constantly struggled to regain freedom for 12 years. While enacting most Nigerian laws, we continue in our somewhat ‘slavish’ adherence to some English tenets which are incompatible with our culture and in some cases, we appear indifferent about gaining legislative freedom from some of our inherited or received English legal principles.

This article focuses on how a certain provisions of the ‘inherited’ and unrevised succession law in Lagos State interferes with the constitutional right to private and family life. I have not checked the Wills Laws of other States to confirm whether they have similar provisions, but section 11 of the Wills Law of Lagos State intriguingly provides that: “Every will made by a man or a woman shall be revoked by his or her marriage (other than a marriage in accordance with Customary Law) except…”

This provision was imported or inherited from the English Wills Act 1837 – a period of 186 years ago. For the avoidance of doubt, section 18 of the Act provides that: “Every will made by a man or woman shall be revoked by his or her marriage…”

For proper context this, this provision was enacted as a shield to protect women from the medieval English culture that automatically converted women’s properties into their husbands’ upon marriage. Dr Juliet Brook, an associate professor at the University of Reading, elaborately captures the historical reasoning behind the rule thus:

“At the time of the enactment of the Wills Act 1837, the status of a woman changed fundamentally on marriage. She became a feme covert, with her property becoming that of her husband. Following her marriage, she could only make a will of personality if her husband consented to its terms, and any will of land made by a feme covert was void by statute. Due to the much-reduced property ownership
rights that came with the status of being a feme covert, it was not possible for a will made prior to her marriage to continue as a valid will after the marriage and a woman’s will was therefore revoked on marriage.” (See Brook, J. Automatic revocation of a will on marriage – a rule that is past its use-by date? Private Client Business, 2024 (1). pp. 20-27).

Happily, the United Kingdom is currently engaging stakeholders on the necessity to review the oppressive provision that has now become a tool of predatory marriages. (see Law commission considers wills and predatory marriage – does the law need to change? <https://www.lexology.com/library/detail.aspx?g=8df64189-bc08-4b30-8dbb-350dfae768fd)

The privacy problem with section 11 of Wills Law of Lagos State

Making a will is a personal affair covered by the right to private and family life under section 37 of the Nigerian Constitution. The Court of Appeal has elaborately interpreted section 37 of the Constitution in Nwali v EBSIEC (2014) LPELR-23682(CA) to cover a person’s plans, choices, desires, relationships, material possessions and family life. Hence, the plan or desire to choose whoever to bequeath one’s personal properties to, upon one’s death is a personal affair covered by the right to privacy.

Privacy being a constitutional right, towers above the Wills Law enacted by the Lagos House of Assembly which tends to interfere with the enjoyment of freedom to dispose one’s properties just because the person marries under the Act. In my opinion, the provision of section 11 interferes with the right to plan one’s succession by assigning personal properties to beneficiaries of one’s choices upon

The right to private and family life inherently protects an individual’s autonomy over their personal affairs, choices and decisions. These decisions including plans relating to property, inheritance, and the disposition of one’s estate after death.
Hence, a provision that allows the automatic revocation of Will by marriage undermines the testator’s autonomy. It essentially dislodges an individual’s desire to control the distribution of their estate as they please.

The making of a Wills is usually informed by many reasons, one of which may be the desire to keep family members’ closely-knit by designating certain properties as family properties. Consequently, the automatic revocation provided under section 11 will force testators to rewrite their Wills upon marriage, which may not necessarily reflect their uninfluenced intentions. This is particularly instructive where someone contracts a marriage in circumstances where they do not intend to alter the provisions of their existing Will. The revocation provision forces a change to this personal and private prearrangement without the individual’s active decision, thereby violating their right to manage their personal affairs according to their wishes. The provision represents an unnecessary and for the most part, an unjustifiable intrusion by the state into a private matter, as it essentially dictates that an individual’s personal decisions regarding the distribution of assets must be modified by a life event (marriage) even if the individual does not wish to do so. This reduces the individual’s ability to make decisions about their estate in line with their desires and preferences.

Conclusion

The provision of section 11 that automatically revokes a Will upon marriage constitutes an unpalatable disruption of an individual’s right to private and family life. By undermining the autonomy of individuals in managing the distribution of their estates, this provision disregards personal wishes and the right to make decisions regarding one’s property without undue interference from the state through legislation. The automatic revocation forces individuals to modify their estate plans, even when they may not intend to do so, disrupting carefully considered arrangements made prior to marriage. This is the case for learned testators but in the case of the undiscerning, the consequences are worse upon their demise.

While the intent behind this provision may be to protect the interests of spouses and ensure equitable distribution of assets, it fails to account for the diversity of family structures and the nuanced personal nature of estate planning. By imposing a blanket rule on subsequent (statutory) marriages, it undermines the principle of personal autonomy – an essential interest protection by the constitutional right to privacy. Ultimately, the automatic revocation of a Will by marriage is a measure that requires careful re-examination to balance the legitimate interests of protecting spouses with the fundamental right to control one’s personal and familial affairs. Legal frameworks should aim to uphold the integrity of individuals’ decisions while also providing mechanisms for fair and equitable treatment of spouses, ensuring that the principles of private and family life remain respected and protected.

Court’s Power To Compel An Adult To Submit To DNA Test: A Tale of Two Conflicting Court of Appeal Decisions On Privacy Implications |  Olumide Babalola

by Legalnaija | Dec 11, 2024 | Blawg

The court’s power (or lack thereof) to compel an adult to submit to DNA test: A tale of two conflicting Court of Appeal decisions on the privacy implications |  Olumide Babalola

On Sunday, the 1st day of December 2024, while watching Manchester United’s demolition of Everton FC when Mr Folabi Kuti, SAN graciously sent me copy of judgment of Supreme Court of India in Firodia v Firodia SLP (C) No.9855/2022 where the court held that resort to DNA test ought not be exclusively used to prove adultery in divorce cases. In that case, the court interestingly held that the mother of a child could, in deserving circumstances, oppose the conduct of DNA test on her child.

In Nigeria, while the case law is somewhat settled on the powers of the court to order DNA tests to prove paternity on the application of the parties, the law is still shaky on the privacy implications of such order especially where a parent objects. In the last decade, the Nigerian Court of Appeal has delivered two contradictory decisions concerning the issue of whether an adult can be compelled to undergo a DNA test. The rulings, while addressing similar issues, have brought into sharp focus the balance between an individual’s right to privacy and the state’s interest in compelling a person to submit to genetic testing.

In Tony Anozia v Mrs Patricia Nnani (2015) LPELR – 24277(CA), a man who was never married to a woman sued her and her 57-year-old son seeking declaration that the applicant was the biological father of the grown-up. The applicant consequently sought an order referring the woman and her son for DNA test upon which the court would make a declaration of paternity. Interestingly the Applicant also sought an order issuing bench warrant against the 57-year-old and his mother to participate in the suit. In the case, the High refused to order the mother to present herself for DNA test because, according to the Court of Appeal, the courts lack such powers. For full measure, the Court of Appeal, per Mbaba, JCA elaborately held that:

“By insisting that the interlocutory application ought to have been granted, and implying that DNA test was indispensable in the circumstances, as oral evidence would never be conclusive to determine paternity of the 2nd Defendant, Appellant was admitting he had no evidence to establish his claim and so needed the Court to assist him extract a possible evidence from the Defendants, by ordering them to submit to DNA test to case was founded on speculation and assumption that if the DNA test was ordered, the result was likely to favour him – Appellant! Certainly, Appellant cannot be allowed such whimsical past time, as it has no place in law. It is unimaginable for a court to order two unwilling adults or senior citizens to

submit to DNA test, in defiance of their fundamental rights to privacy for the purpose of extracting scientific evidence to assist Appellant to confirm or disprove his wish that the 2nd Defendant -a 57 year old man -is his child, of an illicit amorous relationship!…I think it is only the 2nd Respondent (a mature adult) that can waive his rights and/or seek to compel his parents (or those laying claim to him) to submit to DNA test to prove his root. Of course, where one is a minor (not mature adult) and his paternity is in issue, the Court can order the conduct of DNA test, in the overall interest of the child, to ascertain where he belongs. That is not the situation in this case, where Appellant has a duty to establish his claim on the 2nd Respondent, independently, and to produce such evidence to the Court. Of course, if he elects to use the DNA test, to establish his claim it is up to the Appellant to go for it on his own, and/or woo the Respondents to do so, without a resort to the coercive powers of the Court, to compel his adversary to supply him with the possible evidence he needs to prove his case.”

In his concurring judgment, Raphael Agbo, JCA (of blessed memory) held that:

“In this appeal the Appellant is challenging the refusal of the trial Court in an interlocutory application to order the 2nd Respondent to subject himself to a medical

procedure which he calls DNA test to enable the Appellant to prove that the 2nd Respondent is an illegitimate child. The Respondents have no duty to help the

Appellant to establish his case. That remains squarely his responsibility. The Appellant was asking the trial Court to encroach on the privacy of a citizen, a right

entrenched by Section 34 of the Constitution of the Federal Republic of Nigeria. The prayer is scandalous in the extreme and must be deprecated. The trial judge was right in refusing the application.”

In a later case of Peace Izontimi v Steven Izontimi (2017) LPELR-45004 (CA), a man filed for divorce wherein he denied fathering the children of the marriage. Before the matter got to trial, the man filed an application for the court to compel his wife and the infant children to submit themselves to DNA test. When the trial court granted the application, the woman appealed to the Court of Appeal where she formulated as issue on “Whether considering the circumstances it was proper for the court to order for DNA test against the Appellant’s will?”

On the appeal, the appellant’s counsel argued that an order compelling an adult to submit to DNA test violates the right to privacy under section 37 of the Constitution and also referred the court to its earlier stance in Anozia’s case, but the court went ahead to resolve the issue from an evidential point of view to the exclusion of privacy discussion thus:

“I am still of the firm but humble view that maternity or paternity of any children in a marriage cannot be determined by the mere ipse dixit of the disputants but

by evidence … I have considered and taken into account the place of DNA tests in bringing about evidential facts by way of expert and scientific evidence and its relevance in the circumstances of the instant appeal. Even though, the discretion to grant or refuse the application of the Petitioner/Respondent to order for DNA tests, is primarily that of the lower court to exercise… The ruling of the Bayelsa State High Court delivered on 18th December, 2015 in Suit No. BHC/ID/2015 is affirmed.”

Here, the court curiously alluded to the court’s power to compel a child’s mother to submit to DNA test as a matter for judicial discretion even where the mother opposes such a test. The Court of Appeal’s approaches in these two cases are at loggerheads. While in Anozia, the court clearly ruled that an adult cannot be compelled by the court to submit to DNA test, in Izontimi a later case, the court affirmed a High court’s order compelling a mother to submit to DNA test.

Since the Court of Appeal avoided the issue of privacy in Izontimi, the conclusion in Anozia’s case which acknowledged the violation of the right to privacy is preferable as it reinforces the Supreme Court’s decision in Okonkwo v MDPDT v Okonkwo (2001) 7 NWLR (Pt. 711) 206 where the apex court defines privacy to mean: “right to protect one’s thought, conscience or religious belief and practice from coercive and unjustified intrusion; and, one’s body from unauthorised invasion. …The sum total of the rights of privacy and of freedom of thought, conscience or religion which an individual has, put in a nutshell, is that an individual should be left alone to choose a course for his life, unless a clear and compelling overriding state interest justifies the contrary.” (Emphasis mine)

In this context, forcing an adult to submit to a DNA test constitutes an infringement on their personal autonomy, bodily integrity, and privacy. Admittedly, the state may have a legitimate interest in determining paternity or resolving inheritance issues, such matters should not override an individual’s right to bodily autonomy, especially where no immediate or overriding public interest is at stake. Forcing an adult to submit to a DNA test was likened to subjecting someone to unwanted medical procedures, which is a breach of privacy rights.

In the second case, where the Court of Appeal was silent on the potential violation of the right to privacy, the outcome raises important questions. The failure to address the privacy concerns leaves the legal landscape unclear and creates a precedent that could potentially undermine privacy rights in similar cases. While it is possible that the Court intended to focus on the essentiality of DNA tests and necessity of evidence of paternity, its failure to deal with the constitutional issue of privacy could lead to confusion in future cases. Without a clear stance on privacy, the legal system may struggle to navigate the tension between the state’s interest in solving certain legal questions (e.g., determining paternity or inheritance rights) and the individual’s constitutional right to privacy. Moreover, the absence of a detailed examination of privacy rights leaves room for future cases to potentially erode the protections afforded to individuals in relation to their bodily autonomy.

Conclusion

The conflicting decisions from the Nigerian Court of Appeal on whether an adult can be compelled to submit to a DNA test underscore the ongoing debate over the right to privacy and individual autonomy in an age of advanced forensic technology. While one decision clearly protects the right to privacy, the other leaves the issue unaddressed, highlighting the need for greater clarity in both judicial reasoning around privacy and DNA tests. As genetic testing becomes more prevalent in legal and societal matters in Nigeria, the courts must strive to always balance the complex intersection of burden of proof and the right to privacy. Through judicial decisions, it is essential that privacy rights are preserved while ensuring that the law can effectively address the growing role of DNA testing in contemporary legal disputes.

Evenings Of Unending Fun As NBA Ibadan Celebrates 70th Anniversary

by Legalnaija | Dec 9, 2024 | Blawg

EVENINGS OF UNENDING FUN AS NBA IBADAN CELEBRATES 70TH ANNIVERSARY

As part of the 70th Anniversary celebration of the Nigerian Bar Association, Ibadan Bar, the Planning Committee has lined up an exciting array of social events to honour the branch’s rich history and bring members together to unwind and have fun.

These activities promise fun, relaxation and unforgettable moments.

• The Jersey Party

It’s going to be an evening after the Aare Afe Babalola/NBA Ibadan Football Competition Final where members of the Bar and football fans will come together to have fun in an exciting setting. Get your Jersey ready and join us on Saturday. 14th December, 2024 for a party like no other at the Aare Afe Babalola Bar Centre, Opp. Old NTC, Iyaganku Road, Ibadan.

• Movie Night

Bringing the SCREEN to the BAR! Relax with colleagues and enjoy a cinematic experience as we celebrate 70 years of excellence in style on Sunday 15th December 2024 at the Aare Afe Babalola Bar Centre, Opp. Old NTC, Iyaganku Road, Ibadan

• Variety Night

A vibrant evening of unlimited fun with good live band music, dancing, lots of drinks and food. it’s going to be an evening to celebrate creativity and community at the Aare Afe Babalola Bar Centre, Opp. Old NTC, Iyaganku Road, Ibadan on Monday, 16th December, 2024

• Karaoke/Games Night

An evening of music, laughter and friendly competition! Come sing your heart out on stage or showcase your gaming skills with trivia and board games on Tuesday 17th December, 2024 at the Aare Afe Babalola Bar Centre, Opp. Old NTC, Iyaganku Road, Ibadan

• 70th Anniversary Dinner and Award Night

A grand night of elegance and honour featuring the investiture of Dr. Wale Babalakin SAN as Patron and the presentation of Awards of Excellence to deserving members. Let’s dine on Wednesday 18th December, 2024 while the Dinner speech is being delivered by Aare Olumuyiwa Akinboro, SAN, Past General Secretary of NBA and a life Bencher. This event will be chaired by Alhaji Ahmed Raji, SAN, Principal Partner, Ahmed Raji & Co.

These activities are designed to celebrate our shared legacy, strengthen bonds and create memories that will last a lifetime. Mark your calendars and join the NBA Ibadan as we celebrate 70 incredible years.

We can’t wait to see you there!

Kindly pre-register for the event via https://nbaibadan.org.ng/70thanniversaryregistration/ and do not forget to purchase your dinner ticket via https://nbaibadan.org.ng/dinner-ticket/

For more enquiries, kindly contact 70thanniversary@nbaibadan.org.ng

Data Protection And Transparency Of Modern Elections In The Nigerian Legal Profession: Charting A Way Forward | Olumide Babalola (Part 2)

by Legalnaija | Dec 6, 2024 | Blawg

(Being Part 2 the text of a speech delivered at the 17^th SPA Ajibade & Co.’s Annual Business Luncheon held on the 5^th day of December 2024 in Lagos, Nigeria)

The Way Forward: Recommendations

The 2024 e-elections have come and gone but like its predecessors, vestiges of allegations of electoral malpractices continue to linger, especially in the light of the documented pushbacks from the electoral umpire. For future elections i.e the ones conducted on digital platforms, the NBA ought to sincerely consider the following suggestions:

• Proactive information on voters’ personal data

One of the data subjects’ rights guaranteed by the NDPA is the right to be informed on the processing of personal data. Since the ECNBA acknowledges that some “critical” personal information are fed to the e-voting platforms towards the elections,  the NBA as controllers ought to proactively provide full, lucid, comprehensive and understandable information to the voters on the entire life cycle of their personal data for the electoral process i.e from collection to migration to the e-voting platforms and post-election use (if any). For clarity, the ECNBA must provide information on the data flow of the entire electoral cycle. For example, when you register to vote, where is the data recorded, after voting where are the votes’ digital receipts stored? etc. The NDPA expressly requires information on recipients of personal data, in this case, the e-voting platform, the period of retention, the sub-recipients from the e-voting platform and most importantly the rights of users.

• Adopt a multi-level approach towards curbing Identity theft and double-voting

It is rather too simplistic for the ECNBA to conclude that inaccurate voter records is not its “issue.” The duty to ensure the accuracy and update of personal data is a shared responsibility between the controller (ECNBA) in the context of elections and the voters. Interestingly, the NDPA puts this responsibility squarely at the NBA/ECNBA’s doorstep to ensure the accuracy of personal data and keep it up to date. The NBA does not have to wait till the election period before cleaning up the members’ personal data since the obligation to ensure accuracy and updated records is a recurrent duty. The NBA has an existing database of members which has members’ emails and telephone numbers, which can be used as a benchmark for the voters list to flag inconsistencies ahead of time.

• Votes cast are the personal data of contestants accessible by DSAR

The complainants’ request for the election transaction is to compare the number of votes cast in their favour with the results recorded for them in order to establish their allegations of manipulations and other electoral malpractices. In elections, votes cast in favour of a candidate represent the electorates’ endorsement and expression of their preference for the candidate concerned. These votes double as electorates’ and contestants’ personal data. Both the GDPR and NDPA define personal data identically as information relating to an individual directly or indirectly identifiable. From whatever prism one looks at it, election results, e-ballots and voting transactions relate to the candidates since they give clear information on the votes allegedly won and lost, hence they constitute the candidates’ personal data within the context of election outcomes. Admittedly, there are no direct authorities supporting this novel argument however, election computation and results could be likened to examination marking and grading on which a court decision exists. In Peter Nowak v Data Protection Commissioner,[1]a trainee accountant who failed an open book professional examination made a data subject access request for all his personal data held by the examination body. The body obliged the request but refused to share his examination scripts on the grounds that they did not contain personal data but when the matter went to the Court of Justice of the European Union (CJEU), the court found that:

“First, the content of those answers reflects the extent of the candidate’s knowledge and competence in a given field and, in some cases, his intellect, thought processes, and judgment. In the case of a handwritten script, the answers contain, in addition, information as to his handwriting. Second, the purpose of collecting those answers is to evaluate the candidate’s professional abilities and his suitability to practice the profession concerned. Last, the use of that information, one consequence of that use being the candidate’s success or failure at the examination concerned, is liable to have an effect on his or her rights and interests, in that it may determine or influence, for example, the chance of entering the profession aspired to or of obtaining the post sought.”

Relating the finding above to the complainants’ request, like examination results, the election transactions reflect the performances of the candidates in the election, and their suitability as decided by the electorate with consequences on their rights and interests in the leadership of the NBA. The totality of these considerations leads to an aggregate of election transactions as information relating either directly or indirectly to the candidates (the complainants) – the falls under the expansive definition of personal data. This position finds support in the European decision of Patrick Breyer v Germany[2] where the court acknowledges that information relating to a data subject may not contain all the identifiers, but an aggregate of other information makes such information qualify as personal data. In the complainants’ case, any vote cast in their favour directly relates to them while the other votes arguably indirectly relate to them as well. In any case, all the votes form part of the election transactions and they holistically relate to the complainants, in terms of the electorate’s endorsement or disapproval.

Having settled the nature of votes as contestants’ personal data as well, then such transactions are accessible by exercising data subjects’ access request. As part of the rights guaranteed by the NDPA, data subjects can request copies of their personal data in a controller’s possession.[3] Relying on this provision, the complainants are within their rights to demand copies of the election transactions and the ECNBA is duty-bound under the NDPA to oblige without incurring any liability.

• Masking/protecting other international users’ data

Part of the ECNBA’s reluctance to grant access is the apprehension of exposing other international service users’ personal data in the process. First, if this excuse was given by Election Buddy, then it is an indictment on them since elections on their platform are meant to be uniquely protected and encrypted. So access to the servers used for a particular election transaction does not necessarily expose data used in other election transactions not associated with the one concerned.  Secondly, to circumvent privacy breaches, other users’ personal data can be masked or redacted while granting access to the relevant election transaction. In Michael J. Durant v Financial Services Authority[4] a bank customer made requests to his bank seeking disclosure of personal data held by it, both electronically and in manual files. The FSA provided him with some copies of documents relating to him but some of the documents were redacted so as not to disclose the names of others, but he wanted more files. When the matter got to the English Court of Appeal, the court notes the need for redaction and when consent will be dispensed with as follows:

“It is important to note that section 7(4) leaves the data controller with a choice of whether to seek consent; it does not oblige him to do so before deciding whether to disclose the personal data sought or, by redaction, to disclose only part of it.”

Under relevant data protection laws, access can validly be granted to servers where a legal basis exists. In this case, the controllers can validly rely on legitimate interest to grant access for elections audit thereby dispensing with the requirement for voters’ consent. For the Nigerian lawyers, the bases of legal obligation and legitimate interest are grounded in the NBA’s Constitution. The second schedule, Part 2, paragraph 8(c) of the Constitution of the Nigerian Bar Association, 2021 provides for electoral transparency thus:

“The ECNBA shall display openness and transparency in all its activities and in its relationship with all members, particularly the candidates for the election, and shall ensure the following: …Establish a system that allows interested parties to access, in a timely manner, all critical information, documents, and databases used in an election process, or used in the normal operation of the election administration.”

This provision was inserted in the Constitution to protect the rights of the complainants as a derogation from voters privacy recognised under section 45 of the Nigerian Constitution which subjugates certain fundamental rights at the expense of laws made for public order and protecting others’ rights. In interpreting how Section 45 of the Constitution relates to rules made by associations, the Supreme Court in Mbanefo v Molokwu ruled that:

“Section 45 provides that nothing in Section 40 of the 1999 Constitution shall invalidate any law that is reasonably justifiable in a democratic society, in the interest of defence, public safety, public Order, public morality or public health etc … This may be an appropriate stage to state loud and clear that

the interpretation of “law” as prescribed under section 45 of the Constitution cannot be restricted only to the statutes of parliament. It would include rules and regulations guiding communities which them in maintenance of peace and tranquillity. This will minimize those anti-social behaviours which spill over to the outside specific boundaries creating a breakdown of law and order thereby overloading the security agencies beyond their tour of duty.”[5]

From the foregoing decision, section 45 trumps any privacy arguments that may be used to shield electoral inaccuracies and malpractices in this circumstance.

• Choice of service provider and access to terms of engagement

As part of the recruitment process for an e-voting service provider, the preferred vendor’s privacy practices must be reviewed to ensure compliance with Nigerian data protection legislation. The service level agreement must be accessible to contestants to pre-inform them of their data subjects’ rights especially access to election transactions, and the rectification of inaccurate or misleading election records/results which are all guaranteed by the Nigeria Data Protection Act 2023.[6]

• Opening the black box and auditable elections

The adoption of e-voting in the NBA elections must turn out a better option than the erstwhile paper-based system in terms of transparency, security and accountability. The crux of the complainants’ post-election umbrage is the umpire’s refusal to allow them to audit the elections through the voting platforms. The ECNBA’s letter discloses that the conduct of what appears to be a self-audit which falls short of the complainants’ request, and what is more, Election Buddy favours election audits thus:

“It doesn’t matter if your organization is a small homeowners association electing officers in an intimate election or if you’re tallying votes for a large-scale industry association—you want to be sure the process is uncorrupted and fair. If the integrity of your elections comes into question, this is when election audits take place. Election audits occur when there is suspicion or evidence of discrepancies or inaccuracies in the voting process. These audits aren’t just reserved for elections involving the government. They can be applied to industries and organizations. Auditing your election can instil voter confidence and ensure your organization follows all proper procedures… While online voting is generally secure and accurate, audits are just as necessary for digital voting as physical ballot submissions. Both methods can work together to ensure accurate results… Currently, manually reviewing and recounting through an objective third party is the best way to audit elections and ensure an accurate vote count.”[7]

The NDPA requires personal data (election results in this case) to be accurate, not misleading and in the event of inaccuracy, it must be corrected and updated to reflect current reality.[8] This accuracy can only be ensured after a proper audit exercise has been conducted on the election. On the essentiality of audits, it has been advised that:

“Appropriate audits can be used to enable trust in the accuracy of election outcomes even if the integrity of software, hardware, personnel, or other aspects of the system on which an election is run were to be questioned.”[9]

In similar terms, Mello-Stark and Lamagna rightly argue that:

“In order for an election system to be trusted, it needs to be verifiable. Methods must exist to check that the votes are cast as intended by the voters. There must be strong evidence that the machines function as they are supposed to function. Voters should feel confident that the election is conducted fairly and accurately.”[10]

Driving further their advocacy for e-voting audits, the authors suggest, the following types of audits: receipts audits, tally audits and system self-checking audits using various methods.[11] In a much recent research paper, Khlaponin et al confirmed the necessity and option of ‘building a system of secret Internet voting, in which a full-fledged audit is available to all voters and their proxies. A full-fledged audit should be understood as such an audit, in which everything that may be in doubt is checked.’[12]

From the foregoing intervention, conducting audits on e-voting systems is not only necessary but essential for the integrity, transparency, and trustworthiness of electoral processes. Audits serve as a crucial mechanism to verify the accuracy of votes, ensure compliance with legal and regulatory standards, and identify any irregularities or security risks. Moreover, the credibility of NBA elections hinges on its members’ confidence in the electoral process. Regular audits can help to reassure stakeholders—including voters, political parties, and regulatory bodies—that the e-voting system operates as intended, free from manipulation or technical failures. By systematically assessing the security, functionality, and overall accuracy of these systems, audits can enhance accountability and contribute to a more robust democratic process.

Conclusion

The 2024 Nigerian Bar Association’s elections together with its post-election controversies provide a valuable case study for the practical and academic assessment of the intersection of data protection and e-voting systems. As technology continues to transform electoral processes across the World, the importance of safeguarding personal data, ensuring voter privacy and ascertaining the accuracy and credibility of voting platforms has never been more pronounced. This retrospective analysis highlights the pre- and post election intrigues, emphasizing the need for robust data protection measures including the respect for voters/candidates’ rights.

Effective data protection in e-voting systems is not merely a regulatory requirement but a cornerstone of public trust in the electoral process. The lessons learned from the 2024 elections underscore the necessity for continuous improvement in the security and transparency of e-voting systems. Moving forward, it is imperative that future elections incorporate best practices in data protection, including regular audits, stakeholder engagement, and adherence to established standards. As we advance into an increasingly digital future, the commitment to protecting voter data will play a pivotal role in fostering confidence and ensuring that bar elections remain fair, transparent, and secure.

Olumide Babalola

(PhD Researcher, University of Portsmouth; Member, Author, Privacy and Data Protection Law in Nigeria; Co-Author, Annotated Nigeria Data Protection Act 2023; Co-Founder, The Privacy Academy)

References

[1] C-434/16 delivered by the Court of Justice of the European Union on the 20^th day of December 2017.

[2] Application no. 50001/12: Patrick Breyer v Germany delivered by the European Court of Human Rights on the 20^th day of January 2020.

[3] NDPA, section 34(1)(a) –(b).

[4] Michael John Durant v Financial Services Authority [2003] EWCA Civ 1746. Delivered in 2003 by the UK Court of Appeal.

[5] Mbanefo v Molokwu (2014) LPELR-22257(SC).

[6] See section 34 of the NDPA.

[7] electionbuddyadmin, ‘Do Elections Get Audited?’ (ElectionBuddy, 24 May 2023) <https://electionbuddy.com/blog/2023/05/24/do-elections-get-audited/> accessed 5 October 2024.

[8] NDPA, section 24(1)(e) and 34(1)(c).

[9]  National Academies of Sciences, Engineering, and Medicine ‘Securing the Vote: Protecting American Democracy’ at NAP.Edu <https://nap.nationalacademies.org/read/25120/chapter/7> accessed 5 October 2024.

[10] Suzanne Mello-Stark and Edmund A Lamagna, ‘The Need for Audit-Capable E-Voting Systems’, 2017 31st International Conference on Advanced Information Networking and Applications Workshops (WAINA) (2017) <https://ieeexplore.ieee.org/document/7929736/?arnumber=7929736> accessed 8 October 2024.

[11] ibid.

[12] Yuriy Khlaponin, Volodymyr Vyshniakov and Oleg Komarnytskyi, ‘Proof of the Possibility for a Public Audit of a Secret Internet Voting System’ (19 January 2023) <https://papers.ssrn.com/abstract=4330966> accessed 8 October 2024.

Data Protection And Transparency Of Modern Elections In The Nigerian Legal Profession: Charting A Way Forward | Olumide Babalola (Part 1)

by Legalnaija | Dec 6, 2024 | Blawg

(Being the text of a speech delivered at the 17^th SPA Ajibade & Co.’s Annual Business Luncheon held on the 5^th day of December 2024 in Lagos, Nigeria)

Preliminaries

By a letter dated 30^th September 2024 and signed by Dr. Babatunde Ajibade, SAN, I was graciously invited by S.P.A Ajibade & Co., one of the oldest law firms in Nigeria, to deliver the keynote address at their Annual Business Luncheon – an event that has, over the years, become a platform for the discourse of burning socio-political legal issues. Hence, I am grateful to the learned Silk and his team for this invitation for two reasons: First, the topic revolves around data protection – a concept that has driven my law practice, revved up my passion and enjoyed my undivided attention for the better part of the last decade. Secondly, the topic also provides us with another opportunity to critically look at our noble profession in light of the issues militating against rancour-free transitions and associational succession plans.

Introduction

Three (3) years after the International Bar Association (IBA) African Regional Forum’s release of a Data Protection/Privacy Guide for Lawyers in Africa,  the Nigerian Bar Association (NBA) is increasingly giving data protection its desired attention. Interestingly, speaking on the document, Mr Ajibade, SAN is quoted to have observed thus:

“Data protection is of great importance to us all. There are many related rights for individuals, including the right to access, rectification and erasure, all of which must be safeguarded by individuals who have a firm understanding of their legal and moral obligation to ensure the necessity of protection. I am delighted that the IBA African Regional Forum is at the forefront of an initiative to provide guidance to lawyers and bar associations on the new data protection regimes across the continent and the importance of protecting personal data and privacy for individuals and business.”

See Data Protection And Privacy Laws Guide Released For The Legal Profession By The IBA African Regional Forum.

In the last four years, with every opportunity provided, I have consistently spoken about the NBA’s need to take data protection seriously starting with the publication of a privacy policy on the Association’s website and this yielded some fruits recently. (For a few of my previous advocacies on this issue, read them here and here). As further indicators of this new consciousness of the bar towards data protection, the Nigerian Bar Association (NBA) through the Section on Law issued two privacy and data protection-centric documents titled ‘Privacy Guidance for Lawyers in Nigeria’ and NBA Cybersecurity Guidelines.

Following the release of the Nigeria Data Protection Regulation (NDPR) in 2019 and the passage of the Nigeria Data Protection Act in 2023, it has become more important than ever for the Nigerian bar to actively engage with both the technical and regulatory frameworks that govern privacy and data protection in their practices, most importantly in electing the bar leaders.

During a telephone call with Dr Ajibade, SAN on the objectives and essentials of this occasion, it became crystal clear that the theme was inspired by the post-2024 bar election disputes which have somewhat become a biennial expectation especially since the introduction of the e-voting system in 2016. For ease of readership, this paper is structured into five parts. The first part introduces the purpose and focus of this academic but practicable intervention. The second part is a typical overview of privacy and data protection concerns over e-voting systems. Since the 2024 NBA election is the crux of the paper, the third part analyses the privacy and data protection issues addressed by the Electoral Committee of the NBA (ECNBA) in their documented response to the contestants after the elections. The fourth part offers some practical recommendations for future NBA elections from a privacy and data protection perspective. The fifth part concludes with the arguments made in the paper.

Privacy and data protection concerns in e-voting systems

Electronic voting or e-voting has been interchangeably referenced as ‘remote voting’ ‘online voting’ ‘Internet voting’ ‘i-voting’ or ‘cyber voting.’ Irrespective of the preferred term, e-voting has been defined as follows:

1.  the election or voting system that relies on ‘some electronic technology for their correct functionality’[i]
2. ‘the use of electronic systems and technologies in elections to cast and count votes’[ii]
3. a ‘systems that allow the eligible voter to cast their votes via a computer normally connected to the internet or intranet from anywhere like home or office.’[iii] and
4. ‘a system of voting where the voters cast their votes from a remote Internet-enabled computer or another access device.’[iv]

Expectedly, e-voting like other activities migrated to digital platforms, is faced with some privacy and data protection concerns briefly discussed below:

• Privacy concerns

Under the Nigerian Constitution, the right to privacy, among other interests, embodies the freedom to vote for the candidate of one’s choice and the autonomy to keep such decisions private, especially in secret balloting. Theoretically, the interests protected by privacy include

• intrusion upon an individual’s seclusion or solitude
• the appropriation of a person’s name or likeness
• publicity which places a person in a false light; and
• public disclosure of private facts about the plaintiff

For elections, the unjustified disclosure of a person’s vote or electoral choices intrudes into the person’s seclusion or solitude. In Nwali v EBSIEC, the Court of Appeal idenetified the nexus between elections and the right to privacy thus:

“… the privacy of his choice of that candidate and the privacy of his voting for that candidate constitute part of his “privacy” as a citizen. The appellant was entitled to the privacy of his decision to vote for a particular candidate, his choice of that candidate and his casting his vote for that candidate. Therefore requiring or compelling him to vote openly in the public watch and knowledge by queuing in front of the poster carrying the portrait of the candidate he has decided to vote for intrudes into, interferes with, and invades the privacy of his said decision, choice and voting, completely removing that privacy, therefore amounting to a clear violation of his fundamental right to the privacy of a citizen guaranteed him and protected by Section 37 of the 1999 Constitution.”[v]

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In the context of elections, privacy ensures the confidentiality of the identity of the voters (voter anonymity) vis a vis the choices made or votes cast. Voter anonymity also known as ‘voter privacy’ is an assurance given to voters that their electoral choices during and after the elections remain private and undisclosed without authorization. While anonymity is mostly seamless in paper-based elections where the electorate physically visits the polling booths to get accredited to cast their votes into the boxes. Afterwards, the ballot papers are procedurally separated from the identity of the voters. The only identifiers are fingerprints which are not immediately attributable to any individuals except they go through some forensic process revealing the identities.  However, in an e-voting system, it is practically impossible to digitally separate voters from their respective votes. This continues to be a source of concern!

• Data protection concerns

Apart from privacy, which is contextually distinguishable from data protection, e-voting systems also generally raise some data protection concerns as follows:

• Obtaining informed consent

Under most data protection laws across the world, consent is one of the legal bases for the processing of personal data. Where personal data is processed based on consent, the subjects of such processing must understand the intricacies of the activities to which they voluntarily and explicitly agree. In electronic voting systems, seeking and obtaining informed and explicit consent is not only a legal requirement but also crucial for maintaining the integrity of the democratic process.

Since e-voting systems constitute an unusual way of casting ballots, voters’ consent to use their personal data in unconventional ways must be validly sought and obtained. Statutorily, voters, like other data subjects, must also have the option to withdraw consent, although, in the case of electronic voting, this is almost impossible, once a vote is cast, as it is practically irreversible to ensure election integrity. Ultimately, the voting system must balance the need for free, informed consent within the technical constraints of vote finality.

• Confidentiality and integrity threats

One of the principles of data protection is – integrity and confidentiality. For e-voting, the principle mandates the electoral umpire to ensure the protection of voters’ personal data by ensuring that voter identities and their choices remain private and secure from unauthorised access, manipulation, alteration or destruction. The principle demands that the votes cast are accurately captured, recorded, transmitted, and counted correctly, without alterations or manipulations. In e-voting systems, the breach of data integrity invariably leads to manipulation of election results, casting doubt on the legitimacy of the outcomes. Since the principle of confidentiality and integrity forms the spine of safe and trustworthy e-voting systems, they are potentially under attack by cybercriminal activities, hence the necessity for robust security mechanisms.

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• Cross-border data transfers

From the definition or description, e-voting systems are digital, hence they are hosted on the Internet and often rely on cloud storage services, data processing centres, and other IT infrastructures that are usually spread across multiple countries. This decentralization of infrastructure introduces the challenge of cross-border data transfers, where voter data flows across national boundaries for storage, processing, or backup. While this globalized infrastructure can increase the efficiency and scalability of e-voting systems, it also introduces legal, privacy, and security risks. These cross-border data flows raise the issues of data sovereignty, adequacy of level of protection, jurisdictional complexities, third-party vendor compliance and associated risks, data security threats, and foreign interference. etc.

• Data retention

Storage limitation is a principle of data processing requiring personal data to be stored within a certain time limit – as long as it is necessary for the initial purpose of collection or otherwise processing. Data retention focuses on the period during which personal data is stored and the processes by which it is deleted or anonymized after it is no longer needed. In e-voting, the length of time voter data is retained can have significant privacy implications i.e increased vulnerability to misuse, compromise and other ills. E-voting systems often store personal information (such as voter IDs and login details) to verify election results or for audit purposes. Retaining this data for unregulated periods creates vulnerabilities, especially in the event of a cyberattack or unauthorized access. While it is important to ensure the integrity of the election, retaining detailed voting records could expose sensitive information, such as how individuals voted, undermining voter privacy.

• Transparency

Various categories of personal data are processed by the e-voting systems, hence the (joint)controllers of the e-voting systems ought to proactively provide information to the users on the functionality of the platforms especially as it relates to the use, purpose(s), transmission, security and retention of the personal data collected. E-voting systems are complex and not easily understandable by the general public or even election administrators. This creates a “black box” problem where voters, candidates and observers cannot easily see how their votes are processed. Transparency is breached when the vulnerabilities of voting platforms are downplayed or not fully disclosed to the public. When security vulnerabilities are kept secret or poorly communicated, voters cannot be sure that their votes are safe from manipulation.

Privacy and data protection challenges in NBA e-voting

The NBA adopted e-voting for its general elections for the first time in 2016 under the leadership of Augustine Alegeh, SAN. The outcome of the election was reportedly challenged because many eligible lawyers were allegedly disenfranchised owing to some functional irregularities. Since 2016 till date, the successive outcomes of the electronic elections conducted by the NBA have been challenged on similar grounds including the repeated requests for post-election audit exercise.

The outcome of the 2024 NBA elections added a twist. The election was conducted on Election Buddy Inc. – a Canadian platform that describes itself as “online voting software ensures your electronic voting is accurate and secure.” After the elections and declaration of results, the 1^st and 2^nd runners-up (the complainants) called for an audit of the elections on the grounds of double voting, identity theft, and manipulation of votes, but that was not the twist. In a 28-paged robust response to the letters written by the complainant, NBA’s electoral body – the Electoral Committee of the Nigerian Bar Association (ECNBA) or (the Umpire), declined the request for an audit with reasons – chief of which are the enforcement of privacy and data protection rights of voters and other non-NBA users of the e-voting platform. In this part, I briefly analyse some of the issues bordering on privacy and data protection as decipherable from ECNBA’s letter dated 25^th July 2024 titled ‘Re: Request for Access to Critical Information Regarding The 2024 NBA National Elections.’ (See the letter here.

• Access to servers and application logs

The ECNBA denied the complainants ‘access to server and application log files used during the election period’ because it is contrary to the GDPR, NDPA/NDPR and ‘Election Buddy Inc provides its services to tons of organizations and nations globally using the same servers and application files, hence giving one user access clearly compromises the entire credibility of their servers carrying other users’ data.’ Curiously, the umpire’s letter does not contain any specific provision of the referenced laws that would be violated if the complainants are granted access to the servers and application logs but the starting point is a confirmation of the nature of personal data borne by the servers and application logs on one hand and the use of such information on the other hand. Are they personal data, anonymised or pseudonymised data?.

From a data protection perspective, this is part of the information that should have been proactively provided to the users of Election Buddy’s e-voting systems and the members of the NBA before personal data are migrated to the platforms for electioneering purposes. Under the GDPR and NDPA alike, at the point of collection of personal data, data controllers (Election Buddy[vi] and ECNBA) are duty-bound to provide certain information about the nature of the data collected, its use and entire governance.

While the GDPR does not expressly state how this obligation is to be fulfilled, its Nigerian counterpart specifically provides for the use of a privacy policy to convey this set of information.  On Election Buddy’s website, their privacy policy interestingly states that they use personal data for “Investigating and protecting against fraudulent, harmful, unauthorized, or illegal activity.” The complainants have alleged identity theft, double voting, electoral manipulation etc. All these point towards illegality – and they have called for an investigation in the mould of an audit, hence the ECNBA and Election Buddy have valid and lawful grounds to grant access to servers and application logs to unravel the alleged illegalities (if any).

Situating this within the relevant provisions of the GDPR, data protection rights and controllers’ obligations are restricted for the investigation and detection of crime[vii] and ‘the prevention, investigation, detection and prosecution of breaches of ethics for regulated professions.’ The legal profession is a highly regulated one, hence any allegation of manipulation of its general elections is worth investigating. Under the NDPA, certain data protection rules and obligations are not applicable to the processing of data necessary for the establishment of legal claims whether in court or out of court.

Legitimate interest is one of the lawful grounds on which controllers can rely to process personal data. The lawful basis allows organizations to process personal data without needing explicit consent from the data subjects where the former has a compelling reason or “legitimate interest” to do so, provided that it does not adversely prejudice the data subjects’ rights and freedoms. Legitimate interest is not defined under the NDPR, however the GDPR gives a little bit of clarity on the concept. This legal basis concerns the processing of data for the purpose of interests legitimately pursued a ‘controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.’ According to Ferretti, “The legitimate interest of data controllers or that of third parties is known as the “balance of interest” clause…Therefore, the legitimate interest clause is considered the criterion upon which the majority of personal data processing takes place, at times the default position, especially for commercial transactions. Under this condition, the processing must be necessary for the purpose, which must be a legitimate interest of the controller or a third party to whom the data is disclosed, provided that such legitimate interests do not impinge upon the fundamental rights and freedoms of individuals.[viii]

Section 25(2) of the NDPA requires an assessment to be conducted where legitimate interest is to be relied on. Hence, the three-part test ought to be applied by asking the salient questions:

(a) Purpose test – is there a reasonably expected legitimate purpose behind the processing?

(b) Necessity test – is the processing necessary and compatible with that purpose? and

(c) Balancing test – is the legitimate interest overridden by the individual’s interests, rights or freedoms.?

For the impugned elections, the complainants have only demanded access to the server and application logs pertaining to NBA elections. Considering the weighty allegations, both ECNBA, Election Buddy and the complainants (as third parties) have legitimate interests in preventing electoral fraud by establishing credibility and accuracy of the election results by granting access to the information required for this proof – the purpose. Secondly, this is reasonably necessary to build voter trust, ensure transparency in the succession procedure of the association and to prevent the subversion of Nigerian lawyers’ choice of their leaders – the necessity. In other words, the voters expect their votes to count, hence an audit establishing such accuracy is reasonably expected. In balancing the competing interests, the duty of the Association towards holding credible elections and entrenching the rule of law overrides an individual’s right to privacy on one hand and it is the expectation and hope of every member of the NBA that the election results reflect the true wishes of the electorate, hence they are not averse to election audits confirming the accuracy of such results.

• Consent of voters to the sharing of election transactions

In response to allegations of identity theft leading to double voting, the umpire requests the complainants to seek and obtain the consent of their supporters that alleged identity theft so the umpire ‘can also unveil their said privately cast votes for transparency in our investigation.’ Again, while answering a request for voting transactions, the umpire responds that the provision of such information is a violation of voter privacy except the complainants provide ‘consent letters of the voters’ concerned. These answers have repeatedly elevated ‘consent’ above all other legal bases and statutorily allowed derogations. From a privacy or data protection perspective, the umpire is not required to rely on voters’ consent before processing their data to defend the integrity and accuracy of the elections it conducts. This much is confirmed in Election Buddy’s privacy policy thus:

“For operational and legal purposes, we may share your personal information with certain entities as outlined below:… Authorities and others: Law enforcement, government authorities, and private parties, as we believe in good faith to be necessary or appropriate for the compliance and protection purposes described above.”

As argued earlier, relying on legitimate interest and public interest, the ECNBA can validly disclose the voting transactions to the complainants without voters’ consent as contemplated by the relevant data protection legislation.

References

[i] J Paul Gibson and others, ‘A Review of E-Voting: The Past, Present and Future’ (2016) 71 Annals of Telecommunications 279.

[ii] Ghizlane Ikrissi and Tomader Mazri, ‘Electronic Voting: Review and Challenges’ in Mohamed Ben Ahmed and others (eds), Innovations in Smart Cities Applications Volume 7 (Springer Nature Switzerland 2024).

[iii] Mahdi Alhaji Musa and Farouk Muhammad Aliyu, ‘Design of Electronic Voting Systems for Reducing Election Process’ (2013) 2.

[iv] Piret Ehin, ‘Internet Voting in Estonia 2005–2019: Evidence from Eleven Elections’ (2022) 39 Government Information Quarterly 101718.

[v] Hon. Peter Nwali v. Ebonyi State Independent Electoral Commission (2014) LPELR–23682(CA).

[vi] In their privacy policy accessible at: https://electionbuddy.com/privacy-policy, Election Buddy admits that there are instances where they act as controllers with respect to voters’ information.

[vii] GDPR, article 23(1)(d).

[viii] Federico Ferretti, ‘Data Protection and the Legitimate Interest of Data Controllers: Much Ado about Nothing or the Winter of Rights?’ (2014) 51 Common Market Law Review <https://kluwerlawonline.com/api/Product/CitationPDFURL?file=Journals\COLA\COLA2014063.pdf> accessed 19 June 2023.

Olumide Babalola

(PhD Researcher, University of Portsmouth; Member, Author, Privacy and Data Protection Law in Nigeria; Co-Author, Annotated Nigeria Data Protection Act 2023; Co-Founder, The Privacy Academy)

NBA IBADAN AT 70: Ibadan Bar Set To Host 5 NBA Branches In A Football Competition

by Legalnaija | Dec 4, 2024 | Blawg

Anticipate and experience the thrill and celebration of the 70th Anniversary of the Nigerian Bar Association, Ibadan Branch with the unfolding of the AARE AFE BABALOLA (SAN)/NBA IBADAN Football Competition, 2024. The Competition is set to begin on 5th of December, 2024 and the final match will be played on 14th of December, 2024.

The Football tournament this year will feature the Ibadan Branch Football Team, (the defending champion of the NBA National Football Competition) alongside the football teams from Osogbo Branch, Akure Branch, Lagos Branch, Ikeja Branch and Ijebu-Ode Branch.

See below for the Fixtures and Match Schedule

FIXTURES

Group A

A1 (Ibadan Bar FC)

A2 (Osogbo Branch FC), A3 (Akure Branch FC)

Group B

B1 (Lagos Branch FC)

B2 (Ikeja Branch FC)

B3 (Ijebu-Ode Branch FC)

MATCH SCHEDULE

MATCH 1 (Day 1) 5th December, 2024

1. GROUP B @3pm – B1 ( Lagos Branch FC) versus B 2 (Ikeja Branch FC)

2. GROUP A @5pm – A1 (Ibadan Bar FC) versus A2 (Osogbo Branch FC)

MATCH 2 (Day 2) 6th December, 2024

1. GROUP A @3pm – B2 (Ikeja Branch FC) versus B3 (Ijebu-Ode Branch FC)

2. GROUP B @5pm – B2 (Ikeja Branch FC) bersus B3 (Ijebu-Ode Branch FC)

MATCH 3 (Day 3) 7th December, 2024

1. GROUP A @3pm – A3 (Akure Branzh FC) versus A1 (Ibadan Bar FC)

2. GROUP B @5pm – B3 (Ijebu-Ode Branch FC) versus B1 ( Lagos Branch FC)

THIRD PLACE MATCH: 14TH DECEMBER 2024

RUNNERS UP GROUP A (RGA V. RGB) RUNNERS UP B

TIME: – 3PM

FINAL MATCH: 14TH DECEMBER, 2024

WINNER OF GROUP A (WGA V. WGB) WINNER GROUP B

TIME: – 5PM

VENUE FOR ALL THE MATCHES: – OLUBADAN STADIUM, OPPOSITE HIGH COURT COMPLEX, IYAGANKU, IBADAN, OYO STATE, NIGERIA

Kindly pre-register for the 70th Anniversary Celebration via https://nbaibadan.org.ng/70thanniversaryregistration/ and do not forget to purchase your dinner ticket via https://nbaibadan.org.ng/dinner-ticket/

For more enquiries, kindly contact 70thanniversary@nbaibadan.org.ng

Divorce Cases And The Unnecessary Disclosure Of Embarrassing Private Facts: A Passionate Appeal To Nigerian Lawyers To Stem This Socially Destructive Tide | Olumide Babalola

by Legalnaija | Nov 30, 2024 | Blawg

Divorce is an inherently painful and emotional process, often complicated by the disclosure of deeply personal and sometimes embarrassing private information. However, in Nigerian divorce cases, the disclosure of sensitive personal details often goes beyond what is necessary for the fair adjudication of the matter, damaging the dignity and privacy of the individuals involved, and by extension, their families. This practice, which is often done under the guise of pleadings, not only harms those directly involved in the case but also perpetuates social stigmas and exacerbates the already high rate of divorce-related trauma in Nigerian society.

As members of the legal profession, Nigerian lawyers have a profound ethical responsibility to balance the pursuit of justice with respect for privacy, decency, and human dignity. Unfortunately, in many cases, sensitive information that is irrelevant to the resolution of a divorce is unnecessarily disclosed, causing significant harm to the parties (and their dependants) involved. This article seeks to examine this growing concern and calls for a conscientious effort from Nigerian lawyers to prevent the socially destructive consequences of such practices.

Statutory marriages, like every other contractual relationship may/can end as amicably as reasonable without vendetta, mudslinging, intimidation or character-assassination. Happily, the Matrimonial Causes Act provides for instances where marriages can be dissolved by the courts without apportioning blames to either party. i.e where both parties have lived apart for a period of two or three years. Hence, parties to a divorce petition do not necessarily need to divulge gory details of their disagreement especially since court papers are public documents that can be accessed by innumerable number of persons.

The Legal and Ethical Obligations of Lawyers

Nigerian lawyers are bound by the ethical guidelines of their profession, which emphasize the duty to protect the confidentiality and dignity of their clients. The Rules of Professional Conduct for Legal Practitioners in Nigeria clearly outline that lawyers must avoid unnecessary disclosure of confidential information and must act in a manner that protects the integrity of the judicial process.

The challenge, however, arises when lawyers prioritize winning cases over protecting the well-being of their clients. Some practitioners may be inclined to use personal information strategically to gain an advantage in a case, without considering the long-term consequences for their clients. In such instances, the interests of the lawyer may conflict with the ethical duties to their clients and society. A lawyer ought to advise clients against the use of personal or embarrassing details about the client’s private and family life as ammunition for scoring a point in court. Such actions undermine the trust and confidentiality inherent in the lawyer-client relationship, erode public confidence in the legal system, and, most importantly, contribute to the broader social stigma surrounding divorce.

Privacy concerns

I recently read a divorce case where the petitioner was vindictive enough to disclose the HIV-status of his spouse even when that was not the fact relied on for the divorce. Admittedly, Nigeria’s privacy jurisprudence has not developed to the extent of reprimanding and redressing such unnecessary privacy invasion in court proceedings, there however exists foreign authorities for such claims. In L.L. v. France (Application no. 7508/02) a woman filed divorce petition and, in a bid, to win sole custody of the child of the marriage, she fraudulently obtained the husband’s medical record showing he was an alcoholic. When the husband challenged the tendering and use of his medical records as an unjustifiable invasion of his privacy, the European Court of Human Rights held that

“In reality, it was only on an alternative and secondary basis that the domestic courts used the disputed medical document in justifying their decisions, and it thus appears that they could have declared it inadmissible and still reached the same conclusion. In other words, the impugned interference with the applicant’s right to respect for his private life, in view of the fundamental importance of the protection of personal data, was not proportionate to the aim pursued and was therefore not “necessary in a democratic society for the protection of the rights and freedoms of others”

The court ultimately determined that while the disclosure of the applicant’s medical record during the proceedings was in accordance with established procedural law and aimed at protecting the wife’s rights and freedoms, it was ultimately unjustified. This was because the medical records were not essential to the case and did not play a decisive role in the proceedings. Where a party divulge private facts that are unnecessary to the issues in a case, a privacy suit can lie against such a party and section 45 of the Constitution may not offer any defence except such disclosure is required, necessary or backed by law.

Data protection dictates

Court proceedings are not immune or exempted from data protection obligations. Section 3(2)(e) of the Nigeria Data Protection Act 2023 (NDPA) only exempts processions that are necessary to establish legal claims. The test of necessity of a certain processing activity is found in proportionality and reasonableness. The Nigeria Data Protection Commission clarifies that, the necessity of processing of personal data must be determined from the risks and availability alternatives to such processing. (see page 27 of the General Application and Implementation Directive of the NDPA). For divorce cases, parties should ensure that the facts disclosed or evidence used do not portend unusual privacy risks to the other parties especially where there are alternatives to the disclosure of such private facts.

Conclusion

Divorce is a painful process that should not be compounded by unnecessary public humiliation. Nigerian lawyers are in a unique position to play a crucial role in reducing the harm caused by embarrassing disclosures in divorce cases. By adhering to ethical standards, advocating for privacy, and considering the long-term consequences of their actions, Nigerian lawyers can contribute to a legal system that is fair, compassionate, and just. This is a passionate appeal to all Nigerian lawyers to uphold the principles of privacy and dignity, both in the courtroom and in society, and to protect the individuals they represent from the socially destructive consequences of unnecessary disclosure of private facts. It is time for the legal profession to lead the way in creating a society where personal privacy is respected, and individuals are not further victimized by a legal process that is supposed to serve them.