*Says DSS Should Be Commended For Swift Action Against El-Rufai
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Senior Advocate of Nigeria and former National Legal Advisor to the ruling All Progressives Congress (APC), Babatunde Ogala, SAN, OFR, has said that beyond the Cybercrimes Act under which former Kaduna State Governor Nasir El-Rufai has been charged, tapping someone’s phone may also offend sections of the Data Protection Act.
Ogala made the remarks in an interview on Arise TV, where he analysed the legal implications of El-Rufai’s televised admission that “we listen to their calls” in reference to the National Security Adviser, Nuhu Ribadu.
Ogala stated that it would have been irresponsible of the government not to take action following El-Rufai’s televised statement.
“It would have been irresponsible of the government not to take any action. An action ought to be taken and this to act as a deterrent. I only pray and hope that the rule of law will be allowed to take its full course and not politics,” he stated.
The senior advocate explained that phone tapping is an offence regardless of whose phone is involved.
“In my humble opinion, I think beyond the Cybercrimes Act, it may even offend sections of the Data Protection Act. And let’s not just imagine that it’s because it is the National Security Advisor. Even tapping my own line, or Charles, indeed, your own line, offends the law. And it is worse when it is that of the National Security Advisor.”
Ogala emphasised the gravity of the alleged offence.
“I don’t think anybody in any responsible country and where there is a responsible government will come up and say he has tapped into the security architecture of that country and then the government will look the other way.
“I can’t imagine for a minute in that country where they say freedom is almost absolute, anybody can say anything. I don’t think any American will wake up tomorrow and say we have tapped into the official line of the Pentagon and expect that the country will look away. He will certainly be invited to come and make some explanations.”
The senior lawyer drew an analogy to illustrate his point.
“It’s like me walking into Tejuosho market or Yaba bus stop and I say there I have just killed somebody and then you imagine that because you imagine that because I might have freedom of speech the police should first go and establish if I committed the offense before arresting me where I have come to the bus stop to admit to a heinous crime.
“I mean, if this is allowed to go, someday, sometime, somebody else will say on national television, I’m going to shoot the president tomorrow, and you say it is political talk.”
Ogala defended the speed with which the Department of State Services filed charges against El-Rufai.
“There’s nothing swift about investigations. If you have the facility to do your investigations within one day, so be it. The totality of the evidence might just be right there in front of you.
“I think we should even commend them for being swift, rather than saying it’s unnecessary. The DSS should be commended for bringing charges as swiftly as they did, rather than just keeping the man in detention for pending investigations.”
Ogala urged Nigerians to separate politics from criminality.
“I think here I want to appeal to us to take away politics from criminality. This has nothing to do with politics. It has nothing to do with friendship. We should look at the merit or otherwise of the utterances.
“He will not be an ally or a close friend of the president and say on national television and say I tapped the president’s phone and expects the president or the government not to take action because you’re a close ally.”
Ogala suggested that Arise TV, where El-Rufai made the statement, may be called as a witness in the case.
“There is a confession, unsolicited, on national television. So Arise TV, I presume, may even be one of the witnesses in this case. If he spoke with the Chancellor (host), I think you should start preparing yourself for the witness box, Arise TV, because that is the platform in which he made these comments, in which he made these statements.”
When asked whether the alleged phone tapping represented a systemic failure of Nigeria’s security infrastructure, Ogala disagreed.
“You would call it a systemic failure. That would be uncharitable. That would be incorrect. Even the America where the security is set to begin and end, they constantly hack into their systems. Even in China, they hack. All over the world, they hack.
“It just simply means there is element of sabotage because in whatever security architecture you claim to have, whatever network you have put in place are still managed by human beings who could also sabotage the system.”
Ogala concluded that the charges against El-Rufai are properly constituted.
“From what I’ve seen, charges have been brought under the Cybercrime Prohibition Act and the Nigerian Communications Act. Do those laws exist? Yes. The offenses that are stated in the law, do they exist? In my opinion, yes.
“Does what the man is presumed to have said constitute offenses under this law? That is for the courts to determine and for his defense team to put up. But as to whether there are charges that are properly before the court, yes, there are charges before the court because Section 12(1) and Section 27 of the Cybercrimes Act and the Communications Act under which he has been charged are subsisting and valid provisions of our laws.”
Ogala outlined possible defence strategies El-Rufai could employ.
“The man’s plea will be taken. He may get there the day he is arraigned and say, oh, I am guilty. And that will be the end of it. He may also plead not guilty.
“He could well also come to court and say, oh, I didn’t say it on Arise. It was AI. It was not me. And if he successfully proves that, that may be the end of it. So it’s not automatic that the conviction will be gotten or that the man will be convicted or not convicted.”
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