ONE common feature on various security check points on our roads is the subjecting of motorists’ phones, laptops, email and bank accounts to rigorous search by security operatives particularly the police.
Similar searches sometimes extend to premises of citizens.
In the process of such searches, many innocent citizens are harrassed, assaulted, arrested and even detained only to be released at the end of the day since nothing incriminating is found.
According to the perpetrators, such search is in furtherance of their statutory duty of detection, prevention and prosection of crimes and criminality in the society.
While law enforcement agents including the police have the power to generally conduct a search on persons premises or property on reasonable suspicion, care must be taken to operate within the relevant laws so as to avoid violating the fundamental human rights of citizens.
For instance, section 9 (1) of the Administration of Criminal Justice (ACJA) 2015 provides for reasonable approach in carrying out the conduct of search thus “ where a suspect is arrested by a police officer or a private person, the police officer making the arrest or to whom the private person hands over the suspect may search the suspect using such force as may be reasonably necessary for the purpose”
Similarly, section 29 of the police Act, stipulates that a police Officer may detain, 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 be stolen or otherwise unlawfully obtained.
One thread that runs through the scope of the powers of the police to conduct search is the fact that there must be reasonable suspicion and that the seach should be carried out in accordance with the provisions of the
While generally, the police have power to conduct search, the search of premises and items bordering on citizen’s privacy without a search warrant is illegal.
For instance, searching of private correspondence, phones or emails of citizens without a search warrant clearly amounts to invasion of the citizen’s right to Private and Family Life and this is contrary to the provisions of the 1999 constitution of the Federal Republic of Nigeria (as amended)
The right to Private and Family Life is a fundamental human right guaranteed by section 37 of the 1999 constitution of the federal Republic of Nigeria (as amended).
For the avoidance of doubt, section 37 of the constitution clearly provides” The privacy of citizens, their homes correspondence, telephone, conversations and telegraphic communications is hereby guaranteed and protected”
From this clear and unambiguous provisions of the constitution, it is trite law that Police, and other security agents have no power whatsoever to the invasion of any people’s privacy by searching the house or phones, laptops, emails or bank accounts without first obtaining and showing to the owner of the items to be searched an order of court authorising such search.
So what happens when the police at check points on the roads, invade citizens privacy by searching their phones, emails, lap tops, bank accounts and private transactions without first obtaining and showing to the person a court order (search warrant) duly issued for the search.
The simple answer to this is that such citizen’s fundamental right to privacy has been violated and the direct and natural consequence is for the citizen to seek remedy through the enforcement of his fundamental rights and demand for damages for breach of the right, see the case of Abdulhamid v Akar (2006) 13 NWLR (Pt.996) pg127 at pages 149-150 pars G-A where court held that where fundamental human rights are infringed, the applicant can sue under the fundamental rights procedure.
Where however the search is supported by laws that are reasonably justifiable in a democratic society for the purpose of defence, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other persons, it does not amount to breach of fundamental right see section 45(1) of the constitution.
The question now is, is there any law that supports search without warrants of phones, laptops, bank accounts of road users or any other person or persons by the police?
Does such search actually yield any result geared towards curbing crime and criminality?
The obvious answer is no and this has been attested to by no less a person than the Inspector General of police (IGP) kayode Egbetokun, when he recently warned officers and men to desist from the unconstitutional act of invading citizen’s privacy by searching their phones, tops and bank accounts at check pionts without any search warrant duly issued for such purpose.
There is no doubt that many citizens commended the police chief for his directive while others praised him for putting a “ban”on such search.
The truth however, remains that while the directive is commendable, the IGP has not done anything extra ordinary as he merely drew the attention of his officers and men to the existing law and that is the constitution of the Federal republic of Nigeria.
It must be stated that whatever power given to the police by the Police Act or ACJA to conduct search inclusive of that involving privacy of citizens is subject to the overriding provisions of the constitution and anything done that is inconsistent with the provision of the constitution remains void to the extent of its inconsistency. See the case of Governor of Oyo State V Oba Ololade Afolayan (1995) 8 NWLR (Pt.413) pg.292 SC at pg 329 paras D-E per Onu JSC. See also Adeyanju v WAEC (2002)13 NWLR (pt.785) pg.479 at pg 499-500 paras G-B per Galadima JCA (as he then was).
Always consult your Lawyer for redress whenever your right is violated.
Happy new year
