NBA Election And “Our” Rights To Data Protection: A Rejoinder By: Chinonso Nwoye

0

Having read the beautiful write up of my learned friend Anyalewechi Harvey on the topic NBA ELECTION AND “OUR” RIGHTS TO DATA PROTECTION, I tried, albeit unsuccessfully, to resist the temptation of coming up with this rejoinder but it has become imperative, to address what I consider, a leakage and inconclusive conclusions in his piece.
Firstly, I must applaud my learned friend for the time dedicated to extensive research as the issue spoken to in his masterpiece is not yet a notorious aspect of law in Nigeria. In fact, I am one of those who consider the IT boom as the most under-harnessed area of law and as such, the next goldmine of the legal profession.
In this rejoinder also, I adopt the position and disclaimer of my learned friend and just like him, I will not bother to add to the already many chapters of the book of Lamentations that have been written with regards to the just concluded NBA elections.
It is no more news that the NBA constitution of 2015 created a “Universal Suffrage” and an electronic system of voting which meant that somehow, the data of members had to be collated for election purposes. My worry about the piece of my friend however is in this statement, “The salient point of this piece which is to address the duty of confidentiality NBA and its branches owe members in relation to their right to private data.
In this circumstance, NBA will pass for a collector, processor or controller of data. Being so qualified, the duty to keep members data confidential automatically enures…” Through the above statement, my learned friend attempted to ascribe a responsibility to the Nigerian Bar Association, not ascribed to it, or even envisaged by any piece of legislation, or by any stretch of imagination.
Not the NBA Constitution, Cyber Crime Act of 2015 or any other legislation gave “specific” duty of data protection to the Nigerian Bar Association over its members. A wrong can only flow from a corresponding duty. I cannot be wrong for not doing what I was not told to do, either expressly or by implication. I am therefore in the dark as to how he landed into a conclusion that NBA has a duty to keep members’ data private.
Although in advanced climes such as the European Union and United States where specific data and privacy protection laws have been enacted, the entire NBA election would have been discarded, and the process revisited for breach of privacy issues, but the truth is that we do not have such domesticated enactments yet either at association level or a legislative angle.
It is important to stress the fact that for the purpose of the just concluded elections, “data” simply refers to Names, email addresses and phone numbers, without more. Now assuming without conceding that an Act bestowed upon the NBA, the duty to protect the data of members, one must still state that it was a matter of election responsibility that the data of “verified” members be made available to all the aspirants to the elections (especially presidential election) as all aspirants had their IT consultants/agents present to monitor the exercise in real-time and make sure that it is the same people who were verified, that eventually voted. Were it not so, how would the subversion of mails and identity theft have been identified in the entire election process?
The point being made here is that I am of the considered view that the NBA cannot be held responsible for the “open grazing” of data which took place. It was the duty of the NBA to make the data available which they did with perhaps pure intentions as to transparency of election process. That some or all of the candidates took advantage of the process and went on a disturbing spree and eventual identity theft bothers more on the integrity of the aspirants that it bothers on a breached duty of data protection by the NBA, as opined by my learned friend.
In conclusion, I share the sentiment of my learned friend where he said that a post-election audit be carried out to find out the extent of complicity of the candidates especially with regards to the firemail.cc openmailbox.org as well as airmail.cc with which the election was “spiritually” hijacked, as posited in certain quarters, I however hold the view that although it is the NBA that has the responsibility to appoint the auditors and follow them up to conclusion, they would be doing so as a matter of responsibility bestowed on it by the constitution of the association, and not a face-saving activity arising from a breach of duty, in this case, a supposed duty of data protection.