The Advocate
By Onikepo Braithwaite
Onikepo.braithwaite@thisdaylive.com
Recording Telephone Conversations and Illegal Wiretapping
Gone are those days when the recording of telephone conversations, illegal wiretapping and bugging of physical environments such as bedrooms and offices, were mostly the exclusive preserve of State secret security agencies and government. I remember as a child, being fascinated by the ‘Watergate’ illegal wiretapping scandal, in which five men who were linked to US President, Richard Nixon. were arrested in the Democratic National Committee Headquarters in Washington DC in June 1972, while trying to plant new and replace old telephone wiretaps to gain political intelligence. In a cover up which was subsequently proven that Nixon was aware of, his administration tried to hide those links by paying hush-money, lying to investigators and destroying evidence. The scandal led to the conviction of some of Nixon’s aides, his near impeachment and eventual resignation as President in August 1974, the first President in American history to resign from office. By then, I was 9 years old, and I fully understood what they had done.
Today, with the advent of technology, everybody is recording, particularly telephone conversations, In the UK and Nigeria, as long as the individual recording is a participant in the telephone conversation, such recording doesn’t appear to be an offence even without the consent of the other participants in the conversation. But, in 12 States in USA including California, Florida, Maryland and Washington, all-party consent is required to record conversations that the recorder is part of.
Some people justify these recordings without consent, by saying it is necessary to keep an accurate record of conversations, particularly when it concerns work and business. Personally, I have never done such before; I align with States like Florida, because Section 37 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (the Constitution) guarantees citizens the right to their privacy, in their homes, telephone conversations and telegraphic communications, and recording someone in a conversation without their consent appears to violate this personal right to privacy. Recording can however prove useful in instances where a party to a conversation is a chronic liar, thereby necessitating a record of conversations as evidence, if the need arises. It could have its advantages.
Illegal Wiretapping
However, recording of conversations in which one is a participant in, can easily be distinguished from illegal wiretapping aka bugging of telephone lines without a court order or legal authority, and intercepting/recording the conversations of others. In USA, this is a federal felony governed by the Wiretap Act (Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2511) (Wiretap Act). The penalty for illegal wiretapping could be a fine usually not exceeding $250,000 or imprisonment not exceeding 5 years or both. In the UK, it is a criminal offence under Section 3(1) of the Investigatory Powers Act 2016 (IPA) punishable by Section 3(6) thereof with a fine, or imprisonment not exceeding two years on a conviction on indictment.
In Nigeria, Section 12 of the Cybercrimes (Prohibition, Prevention etc) Act 2015 (CA) criminalises unlawful interception and prescribes a punishment upon conviction of a fine not exceeding N5 million or two years imprisonment or both, while the Nigerian Communications Act 2003 (NCA) provides for lawful interception, outside of which the interception is unlawful.
Unlawful Interception Concerning National Security
It is against this legal backdrop, that the public admission by Malam Nasir El-Rufai on Arise TV becomes particularly significant. The unlawful interception of the communication of a national security agency or an official such as the National Security Adviser (NSA) is a more serious offence, and that is why one wonders why a person as knowledgeable as Malam Nasiru El Rufai would voluntarily give up information on an international television platform such as Arise TV, and inform the public that he participated in such illegal wiretapping, directly or indirectly. In USA, such activities come under the Computer Fraud and Abuse Act, amongst other laws, and gathering such classified information or having unauthorised access to computers to access such information attracts up to 10 years imprisonment, while in the UK, it is covered by the National Security Act 2023 and attracts up to 10 years imprisonment.
Similarly, in Nigeria, such unlawful interception of a security nature is a more serious offence, and may be governed by laws such as the CA (see Sections 12(1) & 27(1)(b)), NCA (see Section 131(2)) and the Official Secrets Act 1962 (OSA). Section 1(1)(b) of the OSA provides inter alia that, a person who obtains any classified information without authority commits an offence, while Section 8(1)(b) thereof makes those who aid, abet, and counsel others to do the crime or are accessories thereto, liable to be prosecuted as principal offenders, and can face up to 14 years imprisonment upon conviction (see Section 7(1)(a) of the OSA).
The fact that the illegal wiretapping involved the telephone line of the NSA, Nuhu Ribadu by Malam El Rufai’s own admission, elevates the offence from a misdemeanour to a felony, because of the NSA’s job description which obviously concerns secret and sensitive national security matters. Therefore, the attempt by some to reduce this issue to one of merely a political witch-hunt against Malam El Rufai, may be trivialising the matter. But, be that as it may, it is a bailable offence.
Bail for Malam El Rufai
However, the issue of bail is not as straightforward as people believe that it is. Indeed, Section 35(1) of the Constitution does provide that every person shall be entitled to their personal liberty, but bail is certainly not automatic. It lists circumstances in which that liberty may be curtailed. Section 35(1)(c) of the Constitution provides inter alia that an individual may be deprived of such liberty, where there is reasonable suspicion that they have committed a crime. In the case of Malam El Rufai, by his own admission on Arise TV, he engaged in unlawful activities. Whether he tapped the line himself or through others, the law describes such a person as a principal offender. Section 35(4) of the Constitution provides that, where a suspect in Section 35(1)(c) is arrested or detained they must be tried within two months of the date of their arrest or detention if they are not entitled to bail, or be released unconditionally or subject to conditions “as are reasonably necessary to ensure” appearance in court for trial.
Section 35(4) of the Constitution therefore, clearly evinces the fact that, not everyone is entitled to bail. But, Malam El Rufai doesn’t fit into this category, since he was granted bail. The Administration of Criminal Justice Act 2015 (ACJA) domesticated by the various States in their laws, particularly Section 158 thereof, more or less echoes Section 35(1) of the Constitution, entitling suspects or detainees to bail subject to certain conditions. For example, a suspect arrested, detained or charged with a capital offence, that is, an offence punishable by death, can only be admitted to bail by a High Court Judge in exceptional circumstances – such as ill health that cannot be managed by the prison’s health authority; where’s there’s a delay exceeding one year in investigation, arraignment and prosecution; or where the Judge considers the circumstances to be exceptional – see Section 161(2)(a)-(c) of ACJA. Again, Malam El Rufai hasn’t been charged with a capital offence.
Section 162 of ACJA mandates that where the punishment for the offence for which a Defendant is charged for exceeds three years imprisonment, the Defendant shall be released on bail, unless it can be proved that such Defendant will commit another offence while on bail; influence or intimidate witnesses or prejudice or interfere with the investigation if it’s still ongoing; conceal or destroy evidence or jump bail. Even where the offence is neither a capital offence nor is the punishment up to three years imprisonment, the Defendant is entitled to bail, unless the court sees reasons to the contrary (see Section 163 of ACJA).
The sum and substance of these provisions is that, for most offences, apart from simple offences that do not attract more than 6 months imprisonment and suspects shouldn’t be detained for – see Section 1(b) of the Minor Offences (Miscellaneous Provisions) Act 1989, the discretion of the Judge plays an important part in whether a bail application will be granted or not. In Shoneye v State (2015) LPELR-25862(CA) per Yargata Byenchit Nimpar, JCA, the Court of Appeal held that: “Bail is a right to a person accused of a crime, but in seeking such a right, discretion of the Court is the fulcrum of the application….Just like any other exercise of discretion, there is no single crystallised form of exercising discretion. Every case is therefore, determined from the particular facts”.
However, Section 165(1) of ACJA provides that where bail is granted, the conditions shall not be excessive. When the conditions are onerous it defeats the purpose, and amounts to a refusal of the bail. In Uduesegbe v FRN (2014) LPELR-23191(CA) per Joseph Eyo Ekanem, JCA, the Court of Appeal held that “Trial Courts are enjoined to be liberal in their approach to grant of bail and the conditions thereof in non-capital offences. They are thus, to grant bail on favourable and affordable conditions. It has held that it is against the spirit of the law to impose excessive and stringent conditions for bail, as that would amount to a refusal of bail”. The purport of this is that, if a person is entitled to bail and it is granted, they obviously suffer no impediments that would prevent the success of their bail application and right to personal liberty; and therefore, onerous bail conditions which are tantamount to the refusal of the bail application since they cannot be met, are a breach of that right to liberty.
I believe that this may be the argument of the wife of Malam Nasiru El Rufai, Mrs Asiya El Rufai, a Lawyer by profession, about her husband who has been in detention for several months, that the bail conditions are onerous.
In the Wiretapping case, bail was set at ₦100 million with one surety in the same amount. The key conditions include: The surety must reside in Maitama or Asokoro, Abuja. The surety must be a Federal civil servant not below Grade Level 17. The surety must deposit the original Certificate of Occupancy of a landed property with the court.The surety must provide evidence of salary payments for at least the last three months, authenticated by a bank manager within the court’s jurisdiction. The surety must swear an affidavit of means, enter into a bail bond, and submit a recent passport photograph. A verification letter from the surety’s department and a tax clearance certificate for the last six months are required. Malam El-Rufai must surrender all valid international passports to the court. He must report to the DSS headquarters every last Friday of the month by 10am to sign an attendance register.
In Malam El Rufai’s corruption related cases in the Federal High Court, Kaduna, the conditions: Bail in the sum of ₦200 million. Two sureties in the sum of ₦200 million each, landed property (reportedly in GRA Kaduna), and an attestation from the Kaduna State Traditional Council.
My dear readers, what is your view concerning Malam El Eufai’s bail conditions? Does the fact that an individual is unable to meet the bail conditions, necessarily make them excessive? Not automatically. It is also necessary to make the clarification that the N100 million and N200 million mentioned in both bail conditions, doesn’t require the cash deposit of the said sums; it is a recognisance that only becomes due if the Defendant absconds, or breaches the bail conditions. Grade Level 17 is the highest career grade of a civil servant, and residence in Maitama or Asokoro doesn’t mean the surety must own the property, it could be rented accommodation; nor does it stipulate that the certificate of occupancy submitted must cover a property in Maitama, Asokoro, or even Abuja.
While the conditions of bail of the Abuja Court appear reasonable enough, that of the Kaduna court which requires the attestation of Kaduna State Traditional Council raises some difficulty, seeing as traditional rulers operate within a statutory framework controlled by the State Government that appoints and grades them, and if the State Government isn’t favourably disposed to the bail, it is unlikely that the Traditional Council will sign off on it. However, the other side of the coin is that, it isn’t unreasonable for there to be a reluctance to stand surety for a Defendant who has already implicated themselves in a felony offence on international television. But, nonetheless, should the bail conditions be varied, particularly as the Traditional Council have refused to attest, as that refusal is tantamount to inability to meet the bail conditions?
Conclusion
The law draws a clear and necessary line between a participant recording a conversation, and the unauthorised interception of another person’s communications. The former may raise legitimate privacy concerns under Section 37 of the Constitution; the latter, particularly when it involves the telephone lines of the NSA, engages serious criminal prohibitions under the CA and potentially, the OSA. Public admission of such conduct, cannot be easily dismissed as ordinary political witch-hunting. Nonetheless, the rule of law is tested not only by how firmly it restrains unlawful interception, but by how carefully it protects the rights of those accused of it.
Nevertheless, the grant of bail doesn’t translate into a verdict of innocence, particularly when the Defendant may have voluntarily and publicly admitted to committing the offence, unless of course it is viewed through the prism of several other high profile corruption cases of politicians, who after they were granted bail, their court cases faded into oblivion.