Right to Privacy

Per Justice Blackburn, “it is the most comprehensive of rights and the right most valued by man… the right to be left alone.” The right is entrenched within Article 12 of the UDHR, Article 17 of the ICCPR.

S.37 of the 1999 Constitution provides:

The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected

This right is one of the few under the Nigerian Constitution which do not possess any derogation and is only subject to the general limitation under S.45.

The scope of the right provides for the privacy of a citizen in his physical and moral activities. Thus, a person is secured in the privacy of his physical person, moral choices and reputation which cannot be derogated from except lawfully. In line with this, the notion of ‘stop and search’ or arrest of a physical person amounts to an invasion of a person’s privacy and personal liberty unless there is reasonable suspicion warranting such action.

Also, in cases of abortion, the issue before the courts has been whether abortion should be criminalized because the foetus has a right to life which must be protected and since life begins at conception or whether criminalization should not be the case because the Woman’s right to privacy in relation to her body has to be upheld. The resolution for this question came with the case of Roe v Wade where the court held that the Mother has a right to privacy or abortion until the third trimester of pregnancy when the foetus’ right to life subsists and would override the mother’s right to privacy. In Nigeria however, abortion is still a crime unless it has to be undergone in order to save the mother’s life.

In the area of homosexuality, such is still a crime under Nigerian law. See S.214 of the Criminal Code which provides:

Any person who-

(1) has carnal knowledge of any person against the order of nature; or

(2) has carnal knowledge of an animal; or

(3) permits a male person to have carnal knowledge of him or her against the order of nature;

is guilty of a felony, and is liable to imprisonment for fourteen years.

Even within the American jurisdiction, the American courts have held that the right to privacy does not extend to acts of sodomy. It has however been argued that if the right to privacy protects self-defining and self-expressing activities, the attempt to limit such to traditional areas of social roles, institutions and places seems arbitrary.

Also implicit upon the right to privacy of the person is the right to a good character. Thus, any imputation which may tend to lower a person in the estimation of right thinking members of the society and expose him to hatred or contempt is an infringement of this right. This was the holding of the court in the case of FMBN v Adesokan.

Furthermore, another major area covered by the right to privacy is the Home. As was demonstrated in the English case of Seymanes in 1603, it is believed that every man’s home is his castle. Thus, as a general rule, a police officer can only enter into a private dwelling if invited or on the notion that a person to be arrested, stays there. This is the ruling under S.7 of the Criminal Procedure Act.

The Right to privacy within the Home also involves the right of parents to determine issues within the home and certain decisions about the Child. See S. 38(2) of the 1999 constitution which states:

No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction ceremony or observance relates to a religion other than his own, or religion not approved by his parent or guardian.