by Legalnaija | Jan 22, 2025 | Blawg
In 2023, we hosted the Annual conference of the International Law Association-Nigerian Branch at the court of arbitration Lagos Nigeria where Edward Kwakwa delivered a very insighful key note address and Prof.@Bayo Ojo SAN, founder Bayo Ojo & Co and former Attorney General of the Federation honoured us with his presence at the presidential dinner which held at the galaxy hall of the serene and highly delectable Four Points by Sheraton Victoria Island Lagos.
In 2024, we repeated once again, and hosted to an elevated standard the 7th Annual Conference cum 10th Anniverary of the formation of the ILA-NG; an event which held at the Abuja Continental Hotel(formerly Sheraton) where Dr Jumoke Oduwole then at PEBEC and now the Minister of Industry and Trade Federal Republic of Nigeria delivered a very detailed and higly-celebrated keynote address on “Public Private Partnership and International Law: Building Blocks for Sustainable Infrastructure Financing”, thereafter, we hosted attendees of the conference to a posh presidential dinner where Dr John Kayode Fayemi, PhD. a former Governor of Ekiti State, was a distinguished guest during the Presidential Dinner which held same…
This year 2025, we are set to host an explosive and world-class 8th Annual Conference of the International Law Association Nigerian branch with the theme ” Fostering Trade and Investment Integration For Sustainble Development:The Role of International Law” an event scheduled to hold at the precints of the highly serene and widely acclaimed Afe Babalola University Ado Ekiti(Abuad) on the 9th-10th April 2025 and a league of distinguished panelist and speakers are invited.
A former Nigerian head of State and former President(1999- 2007) Gen. Olusegun Aremu Mathew Obasanjo GCFR and other distinguished guests, not forgetting Dr. Olumide Ayeni SAN FCIArb has confirmed their avalability and the 5000 capacity ABUAD hall has been equipped to host both the physical attendees and those that will join virtually.
The conference is convened by the President ILA-NG, His Excellency, Prof. Damilola S. Olawuyi, SAN, FCIArb, a highly revered diplomat and international lawyer, who through his humillity, unassuming intelligence and connections gathers men of class and brains together in a room and the ambience and convivial atmosphere of the event centre will live with you for a life time..Lest i forget, the ILA events of 2023 and 2024 was anchored by the highly-sought-after and my woman crush Shola Soyele , Judiciary correspondent Channels TV and whenever Sholz is on the podium at any legal or social events, happiness flows; her tone of voice and girly body makes the event more colourful…
Register now to secure your seat under the early bird category: https://lnkd.in/dkPDz8y8
Peter Ndubuisi Akpu Esq, ACIS, Managing Partner GREENAGE ATTORNEYS LLP and Secretary Central Planning Com’tte ILA-NG Conference 2025
by Legalnaija | Jan 22, 2025 | Blawg
Traditional institutions in Nigeria have long been pillars of community governance, conflict resolution, and social order. These institutions, led by chiefs, kings, and other traditional leaders, play a crucial role in maintaining law and order at the grassroots level. As modern legal systems evolve, the importance of integrating traditional structures into the broader framework of governance becomes increasingly evident.
Historical Context
Traditional institutions in Nigeria have existed for centuries, predating colonial rule. These institutions were responsible for administering justice, managing resources, and maintaining peace within their communities. They operated on customary laws, which were deeply rooted in the cultural and social norms of the people.
Conflict Resolution
One of the primary roles of traditional institutions is conflict resolution. Traditional leaders often act as mediators in disputes, leveraging their deep understanding of local customs and traditions. Their mediation processes are usually faster, more cost-effective, and culturally sensitive compared to formal judicial systems. This approach fosters a sense of community and encourages the amicable settlement of disputes.
Social Cohesion
Traditional institutions also play a vital role in promoting social cohesion. They organize and oversee communal activities, festivals, and rites of passage, which help to reinforce social bonds and cultural identity. By preserving cultural heritage and promoting communal values, traditional institutions contribute to the stability and harmony of society.
Governance and Administration
In many rural areas, traditional institutions are the primary form of governance. They manage land resources, oversee local development projects, and ensure the well-being of their communities. Their involvement in governance helps to bridge the gap between formal government structures and local populations, ensuring that policies and initiatives are relevant and effective at the grassroots level.
Challenges and Integration
Despite their significance, traditional institutions face several challenges. These include diminished authority due to political interference, lack of formal recognition, and inadequate resources. To maximize their potential, there is a need for greater integration of traditional institutions into the formal governance framework. This can be achieved through legal recognition, capacity building, and collaborative efforts between traditional and modern legal systems.
Traditional institutions in Nigeria are indispensable in promoting law and order, especially in rural and semi-urban areas. Their deep-rooted presence and understanding of local customs make them effective in conflict resolution, social cohesion, and governance. As Nigeria continues to develop, recognizing and integrating these institutions into the formal legal and governance structures will enhance their ability to contribute to a stable and orderly society.
by Legalnaija | Jan 16, 2025 | Blawg
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by Legalnaija | Jan 9, 2025 | Blawg
Dear Colleagues,
Happy New Year and best wishes for 2025.
At the end of every year, most people reflect on their journey during the year, look at the good, the bad and the ugly and in most cases focus on what they could do better in the New Year.
On Christmas Day, a colleague posted a Christmas message from a Lagos-based Senior Advocate of Nigeria on a popular WhatsApp platform for lawyers that I belong to. The Secretary of one of the largest branches of the Nigerian Bar Association (“NBA” or “Association”) immediately jumped on the post stating that he heard that the SAN who was wishing colleagues a Merry Christmas plans to run for office of President of the NBA in 2026. This Secretary then went further to request that the SAN should donate to the digitisation of the Secretariat of his branch. On reading the post by this Secretary the story that I would use as fulcrum for my own reflections on the state of our dear profession became apparent.
In my view, in 2024 there were many worrisome reports and moments in the legal profession, including (i) the report by the National Bureau of Statistics that the Nigerian Judiciary was the most corrupt institution in the country; (ii) the Annual General Meeting of the NBA which ended without an approval of the audited accounts of the Association (for a second year in a row); (iii) the failure of the Electoral Committee of the NBA to abide by the provisions of its own Constitution regarding an audit of its elections; (iv) the shameful abdication of its duty to hear a challenge of the NBA elections by the Appeals Committee of the NBA, amongst others. Perhaps, the watershed is the ongoing imbroglio that concerns Chief Afe Babalola SAN and Mr, Dele Farotimi that has generated such furore locally and internationally. Whatever anyone says about the issue of Aare and Dele, the book in question and the entire episode stands out as a damning criticism of the Nigerian judicial system.
I would also mention that the most widely reported activity of our dear Association in the last year was a visit to Tompolo (a former Nigerian militant leader and ex-militant commander of the Movement for Emancipation of Niger Delta) during which our National Officers were seen showing off that they flew in private jets to the location. Interestingly, it speaks to the culture of impunity of the leaders and silence of the led that no one bothered to ask the purpose of the trip, the justification for it, how it was funded and so on.
As is the case with our Association, immediately after an NBA election and the swearing in of elected officers, the so called NBA politicians start announcing attendance at one event or the other at different branches, congratulating and felicitating everything including the hosting of meetings of branches, condoling with any and everyone and becoming emergency philanthropists willing to do literally anything in order to catch the attention of the voters.
To make matters worse, it has, very unfortunately, become the case that our Association now appears to have been captured by party politicians and government officials who fund elections of the NBA – forcing one to question what exactly their interest is in our Association or whether the NBA would ever be able to live by its own motto of promoting the rule of law. Plainly put, the NBA elections are now run in a way that NBA politicians seek support from governments in Nigeria for their elections and there is no way the NBA can effectively play its role as a watchdog if it continues to rely on those that it should check for its sustenance.
Whilst we struggle with the contradictions of identity and what our role in the wider context of society ought to be, I believe that, at the minimum, the very simple issues that pertain to the individual and collective advancement of the members of the profession should continue to agitate our minds. I am convinced that as part of our New Year resolution we must all individually and collectively work to make our profession, and our Association better and aggressively seek to restore its dignity. We should all commit not to keep quiet if things are going wrong or not to do our bit in public or private capacity – whichever end of the divide that we find ourselves. There are a number of issues that we must, in our enlightened self-interest, pay attention to. Some of them include:
- The Minimum Wage Question: About 4 years ago, the Tony Nwaochei led Remuneration Committee of the NBA carried out extensive research and consultations on the issue of the living wage for lawyers and also the scale of fees and charges. To my mind, these two issues still stand at the core of the issues that the NBA must tackle in order for it to truly play its representative role to its members. The prosperity of every hardworking lawyer must be at the core of the agenda for growth and development. We must seek ways of taking forward the extensive work that was done in this regard or tell ourselves that we are simply not prepared to face the issue head-on.
- Access to Finance: As President of the NBA, Olumide Akpata announced that his administration had set aside the sum of N1.5B (the equivalent of about US$3,500,000 at the time) and the National Executive Council of the NBA had passed a resolution that the funds should be used as foundation for setting up the Access to Finance Scheme which would allow lawyers to borrow up to specified sums from either First Bank of Nigeria Limited or Access Bank PLC, at a hugely discounted single digit rate of 9%. One wonders why nothing has been heard of the funds and the scheme in the last two and a half years and counting.
- Court Monitoring Scheme: There was also a Court Monitoring Scheme that the NBA had invested N18,000,000 in developing an App to facilitate. This scheme was structured to provide real time statistics on the performance of our courts and help the NBA in engaging more constructively in conversations on the Justice Sector. The scheme already had the buy-in of the judiciary and there is no reason why it should be abandoned. In spite of the importance of this scheme in improving the efficiency of our courts, nothing has been heard or said about it since September 2022.
- Protection of Lawyers Work: How much of the work that should come to Nigerian lawyers are given to foreign lawyers by Nigerian Government and its agencies that are involved in large transactions and disputes? What are we doing to ensure that these things don’t happen and that the provisions of the Legal Practitioners Act and other laws that seek to protect the turf of Nigerian lawyers are followed to the letter? We must do everything to ensure that we check the excesses of government and others who send work that should come to Nigerian lawyers elsewhere.
The list goes on and on. It is my view that, as stakeholders in our profession, we owe ourselves a duty to participate in its affairs and to push for the reforms that would transform our profession for the better.
As I close, let me return to the fellow that was openly asking for financial assistance (from a perceived aspirant) for the digitisation of his branch. The constant demand by the branches of the NBA for financial support from non-members of the branch is, perhaps, one of the most despicable and corrupt part of our politics at the NBA and may end up destroying the polity. Turning those that seek to lead you into emergency philanthropists or blackmailing them for votes can only further diminish the branches and indeed the Association. Branches and indeed the NBA must learn to cut their respective clothes to their cloth. There is absolutely no point in embarking on projects that we cannot fund ourselves.
I hope that this year is a year that we identify our purpose and pursue the same vigorously.
Tobenna Erojikwe
Former Chairman Governing Board of
NBA Institute of Continuing Legal Education
by Legalnaija | Jan 9, 2025 | Blawg
Registration opens for PrivCon 2025: The Premier Privacy Conference to Address Cybersecurity and Privacy in Nigeria
The third edition of PrivCon, Nigeria’s leading annual privacy conference, is set to take place on 26th February 2025 at The Civic Centre, Victoria Island, Lagos. This year’s conference promises to be an insightful gathering for stakeholders in privacy, data protection, cybersecurity, and related sectors as it tackles the theme: “Cybersecurity and Privacy in Nigeria: Connecting the Dots.”
PrivCon has steadily grown into a crucial event for industry leaders, government officials, legal experts, business executives, and technology professionals to come together, share knowledge, and discuss emerging issues surrounding privacy and data protection in Nigeria. With data security and privacy taking center stage in today’s digital landscape, this year’s edition will delve into the critical relationship between cybersecurity and privacy, offering fresh perspectives on how these two domains intersect and how they can be better integrated to safeguard Nigerians’ data in an increasingly connected world.
The keynote address will be delivered by Prof. Peter Adewale Obadare, Nigeria’s foremost cybersecurity expert and the country’s first-ever Professor of Practice for Security. Prof. Obadare, known for his pioneering work in the field of cybersecurity, will provide attendees with vital insights into the pressing issues affecting cybersecurity in Nigeria and its direct impact on privacy rights and data protection frameworks.
Attendance at PrivCon 2025 is free, but pre-registration is required. Interested attendees are encouraged to register early to secure their spots. To register, please visit the official conference website at www.privconnigeria.org.
PrivCon 2025 is set to attract a diverse group of professionals from across the privacy, legal, technology, and security sectors, providing a unique platform for collaboration, networking, and exchanging ideas on the future of privacy and data protection in Nigeria.
For more information on PrivCon 2025 or to register for the conference, visit www.privconnigeria.org.
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.
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.
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
by Legalnaija | Dec 6, 2024 | Blawg
(Being Part 2 the text of a speech delivered at the 17th SPA Ajibade & Co.’s Annual Business Luncheon held on the 5th 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 20th day of December 2017.
[2] Application no. 50001/12: Patrick Breyer v Germany delivered by the European Court of Human Rights on the 20th 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.
by Legalnaija | Dec 6, 2024 | Blawg
(Being the text of a speech delivered at the 17th SPA Ajibade & Co.’s Annual Business Luncheon held on the 5th day of December 2024 in Lagos, Nigeria)
Preliminaries
By a letter dated 30th 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:
- the election or voting system that relies on ‘some electronic technology for their correct functionality’[i]
- ‘the use of electronic systems and technologies in elections to cast and count votes’[ii]
- 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
- ‘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:
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!
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.
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.
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 1st and 2nd 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 25th 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)
