The constitutional origins of the right to privacy in Nigeria

Abstract

The right to privacy – a fundamental right and tortious claim – has its deep historical roots traceable to the academic advocacy of Warren and Brandeis in their 1890 article published in the Harvard Law Review. The article closely or remotely invokes the characteristic propensity for judicial activism by the American courts towards the enforcement of the right even though empirical evidence exists on the judicial recognition on privacy in the eighteenth century. In the Nigerian context, even though it is sparingly recorded that the evolution of privacy has been influenced by a myriad of factors, including minority agitation, colonial legacies, political machinations and contemporary legal developments, this article represents an academic ascertainment of the origins of privacy as a fundamental right in Nigeria by tracing its historical trajectory from precolonial constitutional conference proceedings. Combining a predominantly descriptive legal historical methodology with a touch of analytic review, the article emphasises some ‘semantic’ inconsistencies in the few existing academic accounts of the entry of privacy into the Nigerian pre-colonial and Independence Constitutions. By reviewing relevant case law on privacy and the authoritative constitutional documents, the article concludes that, contrary to the repeated academic statements fixing the entry of privacy to the Nigerian Independence Constitution, privacy in Nigeria has been constitutionally recognised as an appendage to the 1954 (Lyttleton) Constitution.