“All the guys come down!”
“What do you do for a living?”
“Wey your phone dey? Oya open am.”
“Oh! you carry laptop oya open am.”
“Open your mail and messages make I see wetin dey for there.”
The above is a typical of how Nigerian Police act with citizens often times in the name of stop and search. If you stretch the above scenario further, the victim would most likely sleep in a police cell for just carrying an iphone or a laptop while on board a commercial bus or motorbike, taxi or even just walking along the street.
Harassment of young men by the police has become so regular that it is now seen as a norm. Only a Nigerian Police would harass a citizen for being in possession of laptop and nothing more. Once you are a young man and you are holding a phone or carrying a laptop, you become an easy prey to the police.
One day I was on transit and policemen on the road accosted our vehicle and as usual asked the driver to “clear for road”. They immediately asked three young men travelling with us to alight. They were thoroughly searched and the one with laptop was asked to open it up and also open his email account. The young man did exactly as he was told and was lucky to have been let go. I was seriously perturbed about this particular act of the police.
The overarching question to ask is whether the police actually have the power to stop citizens randomly for this kind of search.
Section 29 of the Police Act provides
A police officer may detain and search any person whom he reasonably suspects of having in his possession or conveying in any manner anything which he has reason to believe to have been stolen or otherwise unlawfully obtained.
It follows therefore that the police have the power to search, however, such power is not absolute. There has to be a reasonable suspicion that the person has stolen or unlawfully obtained property in his/her possession. That is the position of the law. The test to decide what is reasonable, is something referred to as the ‘objective test’ i.e. whether a reasonable man would have conducted the search of a person in the circumstances.
Therefore, in determining whether a search carried out on you is an unreasonable one, you would have to look at your circumstances. For instance, did you sufficiently identify if asked to by the police? Did you answer any of their questions satisfactorily? If you did, then it might be argued that there were no reasonable grounds for the search. If the police officer did not have any reasonable grounds for suspicion, then you might be able to sue for unlawful search and harassment.
According to the recently passed Digital Rights and Freedom Bill, “Government agencies shall obtain a search warrant based on probable cause before obtaining transactional data in real time about when and with whom an individual communicates using email, instant messaging, text messaging, the telephone or other communications technology …
It must be recalled that the right to privacy is one of the fundamental human rights entrenched in the Nigerian Constitution. Section 37 of the 1999 Constitution of Nigerian as amended provides that:
“The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”
Although police have the power to stop and search individuals upon reasonable suspicion, it follows that their phones, mailboxes, messages, remain private to the owners of these said gadgets and the police have no specific powers to search same as it would otherwise amount to invading one’s privacy which is contrary to the above section as cited above. The contents of one’s messages, mails, etc forever remain private and should not be tampered with in any given circumstance.
However, in order to ensure public safety, health, and order in the society the police may search any gadget if it has any reason to believe that there might be some incriminating evidence that is capable of threatening the peace. But in order to perfectly carry this out the police must have obtained a search warrant under the hand of a magistrate or a high court judge before he can successfully search a person’s gadgets as the case maybe.
So, suffice it to say that the police can search your mailboxes, messages, etc upon reasonable suspicion “IF AND ONLY IF” a search warrant has been duly endorsed under the hand of a magistrate or a high court judge.
It is pertinent to note that unlawful search is also a violation of your right to privacy as guaranteed under the Nigerian Constitution.
Finally, in my opinion the powers of the police under section 29 of the Police Act are huge and enormous and it should be tailored down to a more precise, clear and exact meaning of what should constitute reasonable suspicion in a given circumstance. The term reasonable suspicion is clearly an objective test and not a subjective test and as such it seems to be an open ended statement as there is no end as to what it means. Thus, a trigger-happy policeman may decide to shoot any person he deems fit maybe, because he does not like his face and term it reasonable suspicion or possibly he may search and detain any person he thinks fit and term it reasonable suspicion. The term reasonable suspicion should be clearly spelt out by our legislators and also the laws adequately repealed to reflect the true spirit of the letters of the laws.