As a contribution to Ogun State Bar & Bench Journal 2018, in Honor of Honorable Chief Justice O.O. Olopade CON KJW of Ogun State, Honorable Justice Olatokunbo Majekodunmi of Ogun State High Court drafted and released the below key message on how technology is impeding fundamental human rights. A worthy read:
Fundamental rights are regarded as inalienable human rights which cannot be infringed without a breach of the laws of the land that recognize such rights, such as statutes and the Constitution. Technology on the other hand, is an application of science used to solve problems. It has been used to simplify the lives of human beings and to accomplish various tasks in daily lives. If technology is well applied, it benefits humans, but the opposite is true, if used for malicious reasons.
Fundamental rights are immutable and sacrosanct, except in specific circumstances and only by operation of law. The first trait which makes them immutable is that they are personal or private rights. The human person possesses human or fundamental rights because of the very fact that he is a person, a whole, a master of itself and of his acts, and which consequently is not merely a means to an end but an end, an end which must be treated as such. The dignity of the human person means nothing if it does not signify that by virtue of natural law, the human person has the right to be respected, that he is the subject of rights and possesses rights. These are things which are owed to man because of the very fact that he is a man.
In Nigerian context [applicable to other African nations], the fundamental rights of citizens though acquired naturally, are constitutionally guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria 1999, as amended. They include the right to life; to dignity of human person; to personal liberty; to fair hearing; to private and family life; to freedom of thought, conscience and religion; to freedom of expression; right to peaceful assembly and association; right to freedom of movement; right to freedom from discrimination; and right to acquire and own immovable property. The Supreme Court in emphasizing the inalienable and immutable nature of fundamental rights once said: “It may be recalled that human rights were derived from and out of the wider concept of natural rights. They are rights which every civilized society must accept; as belonging to each person as a human being. These were termed human rights. When the United Nations made its declaration it was in respect of ‘Human Rights’ as it was envisaged that certain rights belong to all human beings irrespective of citizenship, race, religion and so on. This has now formed part of International Law. Fundamental Rights remain in their realm of domestic law. They are fundamental because they have been guaranteed by the fundamental law of the country; that is by Constitution.” The immutability of fundamental rights has been re-echoed by the Supreme Court in numerous other decisions of that Court. Fundamental Rights are rights that are not only basic to the citizens; they are rights that are sacrosanct and very important to everyone within the borders of Nigeria. These rights are molded into freedom blocks that fence the citizen from forces of unbridled aggression, oppression, repression, and authoritarianism. They are of high priority, and upholding them is mandatory rather than discretionary.
Technological advancement is inevitable. Present day innovations in the domain of sciences and information technology occur so rapidly and offer so many new choices for society. In the area of law, for instance, it is not a matter of debate that technology offers tremendous opportunities for crime investigation, information gathering, intelligence gathering, etc. Technology helps in gathering new and different kinds of information to document crime or violations, especially from areas that are insecure and inaccessible. The unassailable fact, however, is that with the advancement of technology there are unanswered questions regarding the impact of technology on human rights protection. The internet and mobile communications networks are increasing the conduits along which information and communication flow. Almost every aspect of human lives is now influenced by technology. Technology is now available by which everybody’s movements can be monitored. Technology is available today by which you can bounce off a light beam from the window pane of a house, capture and record the conversation that goes on within it. Everyone is a videographer and surveillance cameras are everywhere. Getting eyewitness technology has been made easy but so is the manipulation of it. Digital images are easily manipulated and therefore inherently unreliable evidence. WhatsApp, Twitter, Facebook, Google, Amazon and other social media have become essential tools for bringing timely information to the attention of the public. It is noteworthy that with technology, all data, including financial records, can be purchased from these data brokers. New technologies, social media and data banks therefore raise a whole host of problems which traditional legal principles are unable to address.
No doubt, technology threatens the freedom, the dignity and the future of human beings. People in power can use the algorithms gathered through technology to closely watch, trail and manipulate individuals, leading to authoritarianism or dictatorship. Let’s picture a scenario where a young president is determined to have a tight grip over the people of his country. So he streamlines the administration by keeping first class records. He gains access to insurance companies’ records, has a perfect medical history of everyone, keeps criminal records, and offers his people a ‘travel card’ through which every trip is documented. If this dictator presses a button in his office, the full data bank or dossier of information regarding any particular person of that country will appear on the screen in an instant. With all these available to the dictator, the life of people in that society is better imagined. Clearly, a person or regime which desires to consolidate its power over individuals only needs to pool all available data together in a central data bank. However, the collection of data about an individual can be an infringement of his privacy. The inadequacies of the current laws highlight the need for codes of privacy and for regulations that will prevent the indiscriminate pooling of data.
The situation presently is that while science and technology are racing ahead; law and human rights are looking on helplessly from the sidelines, doing very little to match the speed of technology. In other words, law is moving very slowly, while technology moves with lightning rapidity. The result is that technology is racing out of legal control. In consequence, if care is not taken there can be grave damage to human and fundamental rights. As scientific and technological issues advance, the education of the legal community must advance as well. We need a better way of legally regulating new technologies. It will require bridging the gap between technologists on the one hand and legislators, lawyers and the courts on the other hand. All sectors must collaborate.
We need to have laws that are agile and are written to be as technologically invariant as possible; laws that can bridge the widening gap between technology and the law. Not doing so will become increasingly harmful to our constitutionally entrenched fundamental rights provisions.
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