 The Social Economic Rights and Accountability Project CERAP has filed a lawsuit against President Mohamed Abahiri asking the courts to declare illegal and unconstitutional the plan by the administration to track, intercept and monitor WhatsApp messages, phone calls and text messages of Nigerians and other people. The group says the move is an arbitrary interference by the administration into respect for family and private life, the home and correspondence. It also fails to meet the requirements of legality, necessity and proportionality. Joining us to discuss this and break it down is Kala Walee Uluwadari, he's the Deputy Director of CERAP. Thank you very much Kala Walee for joining us. Thank you very much, I'm happy to be here. Yes, a lot of people may not necessarily be able to come to terms with this story because it seems a bit far-fetched. It's something that you would hear on the news abroad that maybe the FBI or the Secret Service is listening in on calls and of course that would cost some form of opera. But for an Nigerian government to be openly trying to listen in on messages and phone calls and many would say it's an invasion of privacy. But you have come out to say it's illegal. There's certain light on this for us because we already know that we cannot have access to Twitter except we use VPNs, that's a bypass. So here we are talking about WhatsApp. Thank you very much. We call it a lawful because it fails to pass the test of legality and to put it in proper context. Four of the 1999 constitution guarantees Nigerian's certain rights. Principal among which based on the topic on that discussion is a freedom to privacy and private family life in the section 37 of the constitution. And section 39 also guarantees Nigerians the freedom of expression that is to communicate and vote to receive information. And the law recognizes that these rights of course are not absolute which is why section 45 provides for certain instances that those rights can be derogated from. And that that's the principle that what is called a three part test of whether such actions would be that they are legal, whether they are proportional or whether at all they can be said to be necessary. So in this instance, there is no law presently in Nigeria that allows any of the law enforcement agencies or any other agency for that matter to monitor the WhatsApp conversations of Nigerians. And it's basically just to eavesdrop on phone calls and SMSs and other things that would go on private forms of private individuals, which is why we say it's unlawful. And if at all there was to be any law, that law still has to conform to the rights granted on the constitution. And of course the constitution being the supreme law of the land if any law conflicts with the constitution, that is what the law says. That law will deploy to the extent of its inconsistency. But even as it is, there is no law that within the government have told us or told Nigerians that the monitoring, call it the proposed monitoring, I don't know whether it's been done presently, it's asking or will take place. As much as I applaud Sarah because I think Sarah has been doing a lot in terms of non-governmental organisations and civil society, there's a lot more work, a lot more burden that just Sarah can carry. As much as I'm praising you, I want to also ask, where is the right of the Nigerian when as much as we say the constitution is supreme? Well, you go to a police station and they say that bail is free. We have a right to free bail, but that doesn't happen. So where is the average Nigerians right? We also have a right to protest. Where is that right today? Because we're unable to protest. And you've seen the stories coming from the federal government, the National Executive Council urging people not to protest on a day where people were killed at a certain toll gate here in Lagos. Where is that right of the average Nigerian when Twitter was banned? We have freedom to associate and free speech. Where is that right in all of this? Because they've been able to successfully put a gag order of sorts or put a stop to some of these things. What will stop them from going ahead with WhatsApp if they're indeed thinking about it? Thank you very much. Which is why we have to go to courts in the system. And it's quite sad that we have agencies of government abridged in law time and again with impunity. And that itself is encouraging, although it's citizens to break the laws. The laws are very clear. And I dare say that we are where we are in Nigeria presently. Not because we don't have laws. Of course, laws just like everywhere, they are not perfect. They're a walk in progress. And they're true of social engineering. But it is that will that is lacking in Nigeria. That is the will. I call it the school will if you will. To enforce those laws. So as part of the laws, as part of the rights guarantee in Nigeria is the freedom of association and the freedom to express yourself, which includes the freedom to protest whether in real times on the street or whether on social media or by whatever means. And so when these rights are being restrained by their state power or individuals, it is a breach of those laws. And you asked me about how would be the remedy. The remedy is what a therapist do presently. To approach the courts, to ventilate your grievances and to ensure that the courts give you your day in court and that those rights will be enforced by the court, which is why you see the way the fundamental rights enforcement procedure rules. That is why it is called enforcement procedure. So it is taken for granted that the rights exist as codified in chapter four. And then you approach the courts whenever you think those rights, that they are being breached, they are, they have been breached or they are likely to be breached. And others said that government can appeal, appealing to citizens not to protest, is still within the rights of governments or their own freedom of expression. And the citizens also hold the rights to disregard that appeal. But what will be a breach of the right is for either the police or any law enforcement agencies to use force to prevent people or dispass people from exercise their fundamental rights. But that should not be, and if that happens naturally, the lawful means of enforcing that right is to approach the courts and not do self-help. Talking about the courts, approaching the courts, I know of so many suits that Sarah, again, I applaud Sarah because you keep doing the job. You're in the news every day. You're asking the government to make this known I always remember a particular case where I think it was in 2015, if I'm not mistaken, if not further back in 2014, but I think it's 2015, where Sarah had asked political parties to make their finances known. As we speak, I'm still sure that that case is still pending in court and there are other arrays of issues that are still pending in court. But then we also know that the judiciary in Nigeria has a lot of question marks as it is today. Can we trust the courts to give the avid Nigerian the justice that he or she deserves and reinforce that right that we all have that have been trampled upon by our elites and of course the people who lead us? Yes, the judiciary has its own problems, not necessarily peculia as to the circumstances but possibly the nature of the problems. It does have any kind of government. But those problems should not prevent the average citizen from approaching the courts. Of course, the problems, they make the wheel of progress of justice a tonne ever so slowly. But we still know that provision for any individual to make the latest grievances, which is why section six of the constitution empowers the judiciary to be the final arbiter even up to the Supreme Court to determine issues of rights, obligations between either citizens or between citizens and government and even between government themselves, which is why you see for instance, states have to go to the courts to enforce their rights and to VAT for instance. The court remains the only bad ones. But isn't that expedited because it was a war between politicians like mines? If it was us versus the government, would it be that fast? Would it be that quick? The response that they got, would they have gotten it as quick as they got it? It is a question we've asked ourselves even though our lawyers have also asked themselves, yeah, Sarah, it is unfortunate that we'll see possible cases or stages of self-nature that take precedence away from enforcement of fundamental rights. Not if we will, at least fundamental rights or the preparation of that can lead to a larger problem. But that is what we see. It should not be. And that's also from our guests too. We've also, you and I live in this country and we've seen so many cases of disregard to the rule of law, court orders, they pick and choose which one to obey and which one's not to obey. Even if the courts were to favor the avid Nigerian, which should be the case, what's the guarantee that the Bahá'í-led administration, which we all know has been stuck in its ways and does what it wants to do? Can we be guaranteed in any way that there will be an obedience to that court order if it does come down to that? I think the spokesman for the administration will be in a better position to answer that. That's why this administration But based on precedence. This ancient, to disobey orders of court, but as law of any citizens, we have no other option but to rely on those courts as the only avenue to ventilate our grievances, which is why we continue in this, what are called needless advocacy, but more or less still the nonetheless important to ensure that the government obeys the order of courts. Not if we will that judiciary is part of governments. It's just an arm of government that gives judgment. Say it doesn't do anyone any good, not even the president or any member of this administration to disobey orders of court. We will continue to advocate it nonetheless to ensure that these orders are obeyed. I'm curious. We're all talking about the reactions from Sarah, but as a Nigerian, as a legal practitioner, why would you think government would want to listen in on the cause of the average Nigerian person? Knowing that, I mean, for Twitter, not every Nigerian uses Twitter. Not everyone who's in the country is tech savvy to use Twitter. But then WhatsApp seems to be the most accessible for almost every Nigerian. And I'm wondering, as we speak, why do you think the government is so eager to do this? Again, it's a two-pronged question. If they're successful in bringing down Twitter and now they're going after WhatsApp, what's going to be next? As to the rationale behind the government's transition to monitor WhatsApp conversations. And again, I'll use the right word, it's if-strapping. That's what it is. Listening into other people's private conversations without their permission. It's not only the breach of the law, but just its flagrant abuse of power and not mentioning the huge amount of funds being voted for this. That's about four billionaires in the 2020 project. There is no law that allows this. And we believe that every Nigerian must not only condemn this, but also take like a service to resist these. But we should continue to defend our rights to privacy and our right to freedom of expression. I really don't see a way forward. I really don't see any rationale for this. Even in law of fact, the national security being such a big war, if I can call it that, to throw around, to defend this on lawful actions of government cannot stand. Government is yet to justify this, whether it's necessary or proportional to the issues or the risks that they are led that we face by stropping into people's conversations. And the last data shows that more than 90 million Nigerians are subject to WhatsApp. And what would be the rationale over the framework for even this, what is to be listened to? Who determines whose conversations to be listened to? Who determines the use of such private data? It's nothing more than the frigates. It's an ill wind of global warming, no good, ultimately. Well, Kolaulai Uluwadare is the Deputy Director for CERAP. And we want to appreciate you for speaking with us tonight. Thank you very much. All right. Well, on that note, we'll take a short break to listen to the opinions of Nigerians to the federal government's plan to monitor WhatsApp. And when we return, I'll say my good-bye. Yeah, I think on this WhatsApp call of the thing, I think the Nigerian government is going too far. We have other challenges in the country where I think the government should pay more attention. By the time you start monitoring WhatsApp calls, that means you are infringing on the people's freedom of speech, which is enshrined in our own constitution. You know, in this case, where is the citizens' freedom? By the time you start monitoring their... So you can't have your personal life anymore just because somebody's running government. It's not supposed to be so. It's not supposed to be so at all. I think if they continue in this pattern, there will be a time the people will revolt. And they will revolt to a point where the government will not be able to contain them. I feel so bad because it's my privacy. So government monitoring my privacy is not to make any sense. And again, it's not something of exceeding something. It is my privacy. It is my home. And it is not their own problem. Anything concerning message, it is for me. So I don't feel that they need to monitor anything concerning me. Do you want to know my opinion on that? Yeah, I'm listening. Just your own opinion. Okay. First, I don't think it is right. WhatsApp and my privacy is my privacy. So I don't think anybody needs to intrude into my privacy. I have a phone. I do businesses on WhatsApp. I make conversation. I make money on WhatsApp. So why then do you have to monitor how I make my money? It's crazy. Or does it mean you have to get to a point whereby they are going to just take technology away from us? It's not possible. This is a modern age. We don't need to go back. Everything in civilization has taken place. It's undoable. Nobody can do that. Not even the president in this nation can do that. It's a private change, you know what I'm saying? It's my privacy. I can chat with my loved ones, my friends abroad, whom anywhere, you know what I'm saying? So nobody has the right. I think one of the sons has said it already that... I think 24 years ago, I said it already that Fedagomin has no right. It's our right. Well, it is our right and we're hoping that those rights will continuously be protected. I am Mary Anacorn thanking you for being part of the programme tonight. See you tomorrow.