On the 24th
of February, 2016 a Senior Advocate of Nigeria, Mr. Rickey Tarfa withdrew an
N5billion fundamental rights violation suit he filed against the Economic and
Financial Crimes Commission (EFCC) and four other respondents. The senior
lawyer had filed the suit, alleging violation of his right to privacy by the
respondents
Mr. Tarfa
in the suit sought a court declaration that his right to privacy was violated
when the call records/log on his phone with mobile number 08034600000 was
allegedly accessed without his authority and made available to Sahara Reporters
and other online news media without any reasonable cause or a lawful court
order.
He also
urged the court to hold that it was unlawful for his iPhone 6 with mobile
number 08034600000 to have been used in calling one Alhaji Ado in Kaduna on
mobile number 08061272929 on February 9, 2016 while the said phone was with
Magu and the EFCC without any reasonable cause or any court order.
Furthermore,
Mr. Tarfa also urged the court to hold that it was unlawful for the EFCC to
access his bank details, clients’ information, private and confidential
information contained in his iPhone 6 with number 08034600000 and Samsung 6 phone
with number 08077341616 without any reasonable cause or any court order.
The writer
cannot tell if Mr. Tarfa’s mobile phones were password-protected but assuming
he had pass-worded/locked his mobile phones (just like Syed Rizwan Farook, one
of the two killers (who were later killed in a shootout with the police) in the
December 2, 2015 San Bernardino, California mass shootings, who left behind a
pass-worded/locked iPhone 5c whose data the FBI has not been able to get access
to) and the EFCC were unable to access the mobile phones either through hacking
or guessing his passwords, would it have been lawful for the EFCC to demand
from Mr. Tarfa or compel him to provide the passwords to his mobile phones?
The Position of the Law in Nigeria
According
to Section 35(2) 1999 Constitution as amended:
“Any person
who is arrested
or detained shall
have right to
remain silent or avoid
answering any question
until after consultation
with a legal practitioner or any
other person of his own choice”
Section
36(11) further provides that “No person who is tried for a criminal offence
shall be compelled to give evidence”. However, section 35(2) is more germane to
the issue at hand so this discourse will be limited to the said section.
The import
of the section 35(2) is that whenever a suspect is in police custody, his
constitutional right to remain silent begins, and this right is to the effect
that he cannot be forced or coerced to say a word unless he volunteers to do so
as it is the duty of the prosecution to prove its case beyond reasonable doubt.
The above position of the law has been upheld by the Supreme Court of Nigeria
in the case of Sugh v. State (1988) NWLR (Pt. 77)475. See also Ajudua
v. FRN (2014) LPELR-24126(CA) where it was
held that an accused has the
right to remain
silent as he
cannot be forced to make a statement
during investigation.
The Position of the Law in the United
States
In the
United States the general position of the law regarding the right to remain
silent or right against compelled self-incrimination is provided for in the
Fifth Amendment to the United States Constitution which provides that “No
person shall…be compelled in any criminal case to be a witness against
himself.”
In the case
of Securities and Exchange Commission (SEC) v. Bonan Huang et al (Case 2:15-cv-00269-MAK), the
SEC were investigating the defendants who allegedly used insider information
associated with their jobs to trade stocks. The SEC suspected the mobile
devices were holding evidence of insider trading and demanded (via a motion
filed in court) that the defendants turn over their passcodes. The defendants
declined supplying their passcodes contending that the Fifth Amendment
protected them. The issue was therefore,
whether the defendants could be forced to give up passcodes to devices that
were provided by their employer, but secured by passcodes chosen by the
employees themselves. The Federal District Court (the Supreme Court has never
ruled on the constitutionality of the issue) in Eastern Pennsylvania ruled that
the defendants cannot be compelled to give up the passcode to their cell phones
as doing so would be equal to giving self-incriminating testimony.
The Position of the Law in the United
Kingdom
The
privilege against compelled self-incrimination or the right to remain silent is
deeply rooted in the common law. Goddard LJ in Blunt v Park Lane Hotel [1942]
2 KB 53 at 257 stated thus;
"No one is bound to
answer any question if the answer thereto would, in the opinion of the judge,
have a tendency to expose (him) to any criminal charge, penalty or forfeiture
which the judge regards as reasonably likely to be preferred …"
In Saunders
v UK [1996] 23 EHRR 313 it was held that Article 6 of the European
Convention of Human Rights guarantees the protection against
self-incrimination.
"The right to silence
and the right not to incriminate oneself, are generally recognised
international standards which lie at the heart of the notion of a fair
procedure under article 6….the right not to incriminate oneself, in particular,
presupposes that the prosecution in the criminal case seek to prove their case
against the accused without resort to evidence obtained through methods of
coercion or oppression in defiance of the will of the accused. In this sense
the right is closely linked to the presumption of innocence contained in
article 6(2)".
However,
the right is subject to numerous statutory exceptions which limit, amend, or
abrogate the privilege in specified circumstances. Therefore, despite the
privilege, individuals may sometimes be required to answer questions or provide
information or documents which may incriminate them. For instance the Regulation of Investigatory Powers Act 2000
(RIPA), Part III, activated by ministerial order in October 2007, requires
persons to supply decrypted information and/or keys/passwords to government
representatives or law enforcement agents with a court order. Failure to
disclose carries a maximum penalty of two years in jail. Thus, under the
provisions of the RIPA Syed Hussain was convicted of failing to provide police
with the password to the USB memory stick seized in a counter-terrorism
operation. When Hussain was arrested in April 2012, police seized a USB memory
stick from his home - but they discovered the information on the device was
protected by sophisticated encryption technology. Hussain told detectives that
he could not remember the password because he was suffering from stress – which
meant they could not access its contents. Police called in experts from GCHQ,
the government's secret eavesdropping and communications agency, but even they
were unable to crack the device.
Oliver Drage, a 19-year old was arrested as part of an investigation into child sexual
abuse images. His computer was seized by police who were unable to access some
material on it thanks to a 50-character encryption password. Police formally
requested the password from Drage, he refused to co-operate, an offence under
the RIPA. He was accordingly
sentenced to 16 weeks in a young offenders’ institution for refusing to give
police the password to an encrypted file on his computer. See-
Conclusion
Considering
the position or state of the law in Nigeria it may be safe to conclude that if
Mr. Tarfa’s mobile phones were locked or pass-worded, the EFCC would have acted
outside the law or illegally if they compelled Mr. Tarfa to disclose the
passwords to his mobile phones which they seized. This is so as to the best of
the writer’s knowledge there is no exception to the right to remain silent
under Nigerian law; unlike the position in the UK, during interrogation in the
custody of law enforcement agents.
However, as
one writer observed:
“Realistically, the right
to silence has a low value and not really exercised by most suspects. Only a suspect
who knows the law and the right well would exercise the right as most people
would not be able to withstand the mental pressures during the interrogation.
False evidences, lies, isolation and many other psychological tactics are
practiced to make the suspect confess the crime. As a result of this, many
false confessions happen due to unbearable psychological pressures.”
It may
therefore, not be out of place to suggest that it would take an extraordinarily
strong-willed suspect undergoing interrogation during detention by any of the
law enforcement agencies in Nigeria, especially the Nigerian Police who are
notorious for torturing suspects in detention, to exercise his right to remain
silent as guaranteed by section 35(2) of the 1999 Constitution as amended!
