The ECOWAS Court has dismissed a suit brought by a registered NGO – the Incorporated Trustees of Digital Rights Lawyers Initiative seeking an order of the Court to compel the Nigerian government to enact a comprehensive law on data protection in compliance with ECOWAS Supplementary Act on Data Privacy.

In its judgment delivered on 13th March 2023 and read by Justice Edward Amoako Asante, the Court agreed with the Respondent, the Federal Republic of Nigeria that it has several laws governing various aspects of data protection as contained in the ECOWAS Supplementary Act and consequently, did not violate the rights of the Applicants as alleged.

The Court also noted the non-use of the word “comprehensive” in the ECOWAS Supplementary Act as well as the non-availability of evidence in support of the nature and extent of the violations claimed by the NGO.

The Court held that “[T]he test for whether any framework satisfies the terms of the Supplementary Act ought to be based on something other than having a single, comprehensive legislation. The substance of the framework, in terms of its scope of protection, implementation framework, and redress mechanisms, weigh more than whether it is contained in a single Act of Parliament.”

Both parties were ordered to bear their costs.

The NGO through its lawyers Mr Olumide Babalola and Mr Solomon Etisang filed the case with suit number ECW/CCJ/APP/37/21 on July 19, 2021 alleging that the Nigerian government did not comply with its international obligation by its failure to enact a comprehensive legislation on data protection that will domesticate the ECOWAS Supplementary Act A/Sa 1/01/10 on Personal Data Protection within the ECOWAS region.

They further claimed that many Member States of ECOWAS, excluding Nigeria, have enacted comprehensive national legislation/laws in accordance with the ECOWAS Supplementary Act adopted in 2010, adding that though Nigeria has a subsidiary law, it was administered by one of its agencies and not an independent organization/regulator as defined in the ECOWAS Supplementary Act on Data Protection.

Article 16 of the ECOWAS Supplementary Act A/Sa 1/01/10 provides that “Membership of the data protection authority shall be incompatible with membership of government, the exercise of business executives, and ownership of shares in businesses in the information or telecommunications sectors.”

The lawyers claimed that Nigerian government’s continuous failure to enact a comprehensive legislation on data protection violated the citizens’ right to data privacy and urged the Court to compel the government to enact a comprehensive law on data protection.

However, the Nigerian government denied the allegations and listed various laws in force for the protection of data privacy in Nigeria adding that, the present ECOWAS Supplementary Act is a “cumbersome procedure which requires prudence on each member state to ensure that the legal framework for privacy of data does not prejudice the general interest of the state”.

Mrs Maimuna Lami Shiru, lawyer representing the government also challenged the capacity of the NGO to file such a matter given that only Member State(s) can request the Court to compel another Member State to comply with its obligation under the Supplementary Act.

She added that an order of the Court would imply an interference with national/municipal laws of the Member State and therefore urged the Court to dismiss the suit describing it as frivolous and baseless.

Also on the panel were Justices Gberi-Be Ouattara and Dupe Atoki.