Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Illegality of the directive on NIN-SIM card linkage 11 Feb 2021

Nigerian national identity card app

On December 15, 2020, the Federal Government (FG) – through the Minister of Communications and Digital Economy, Isa Pantami, and the Director-General (who is also the CEO) of the National Identity Management Commission (NIMC), Aliyu Aziz – gave a directive to telecom operators to disconnect all mobile telephone lines not linked to valid National Identification Numbers (NINs) by December 30, 2020. This directive gave subscribers who hadn't done the SIM card-NIN synchronisation essentially two weeks for compliance.

Telcos that failed to block phone numbers without NINs would have their operating licences withdrawn, according to the directive. A few days later, the deadline was extended to January 19, 2021 for subscribers with NINs and February 9, 2021 for those without NINs.

At first glance, sceptics like me believed this was a diversionary tactic by the FG intended to get the public’s attention away from the abduction of over 300 schoolboys in Kankara, Katsina State, on December 11. The directive was clearly incongruous with the government’s own COVID-19 guidelines and regulations with regard to public gatherings. It seemed inexplicable that the government would negate its objective to contain COVID-19 by promoting super-spreader events at NIMC registration centres amid the second wave of the virus.

The NIN registration exercise has been in operation since 2007. Apart from the claim of making the NINs mandatory as part of the government's efforts in fighting insecurity, there is no apparent urgency for the new SIM registration policy.

The FG is the greatest harvester of data in Nigeria. The Federal Road Safety Corps (FRSC) collects biometric data of individuals before issuing drivers’ licences. The Nigerian Immigration Service also collects data for passports, while the Independent National Electoral Commission (INEC) has the data of people who apply for voters’ cards. Banks and, by extension, the Central Bank of Nigeria also harvest biometric data through the process of providing Bank Verification Numbers (BVNs) for bank accounts. The red tape involved in going through another round of biometric data collection is an indication of lack of creativity and inefficiency on the part of the government.

The National Identity Database created by section 14 of the NIMC Act 2007 is designed to contain “registered information or data relating to citizens of Nigeria and non-Nigerian citizens who are registerable persons.” Non-Nigerian citizens by virtue of section 16(b) and (c) are persons who are lawfully and permanently resident in Nigeria, and non-citizens of Nigeria who are lawfully resident in the country for a period of two years or more.

The information required is spelt out in the second schedule to the Act and include the following sets of information: personal information – name, date and place of birth, gender, residential and other addresses; identification information – photograph of head and shoulders, signature, fingerprint and other biometric information; residence information – nationality, entitlement to remain in Nigeria; personal reference numbers – NIN, national insurance number, Nigerian passport number and/or other immigration document, driver’s licence number, and the dates of expiry for the documents from which these numbers are derived.
The wide range of information in the custody of the government raises privacy and data protection concerns. In a country where human rights abuses and executive high-handedness are prevalent, several experts and activists have voiced concerns about potential violations of individual privacy rights. Furthermore, questions have been raised about the security risks of these data being breached by hostile actors.  
Perhaps the most frustrating aspect of the NIN registration process is the unpreparedness of the NIMC. From inception, the process has been plagued with several difficulties, ranging from poor internet connectivity to lack of power supply and insufficient registration officers. There have also been allegations of corruption in the system. Preferential access is reportedly given to individuals who are willing to pay to fast-track their NIN registration.

Not too long after the registration deadline was announced in December, NIMC’s website crashed. The DG attributed the crash to the unpreparedness of the Commission to handle the huge traffic on its website. It is mindboggling that the government would issue an impracticable deadline and then be clearly inadequately prepared to implement its directive.

Having briefly discussed the Commission’s inefficiencies as well as the health and safety implications of crowding the registration centres; and having alluded to the privacy and data protection issues, it is also important to look at the legality or otherwise of the SIM card-NIN linkage policy.

The first question to ask is whether the government can interfere in the provision of services to citizens by private businesses – in this case, the service delivery by the telcos. Suffice to say the directive to block lines without NIN synchronisation has absolutely no bearing on the regulatory obligations of the telcos. It is important to note that this policy is not concerned with the regulatory KYC (know your customer) obligations of the telecom operators. Rather, this policy risks depleting the profits of telcos in order for NIMC to carry out its own duties.

The NIMC Act specifies in Section 27 the transactions that require the provision of NINs. They include application for and issuance of a passport, the opening of individual or personal bank accounts, the purchase of insurance policies, land transactions, transactions regulated by the Pensions Reform Act 2004, transactions under the Contributory Health Scheme, consumer credit transactions, registration of voters, payment of taxes, transactions that have social security implications, relevant government services and any other transactions, which the Commission may so prescribe and list in the Federal Government Gazette.

Besides the NIMC’s power to prescribe other transactions in the Federal Government Gazette, Section 31 empowers the Commission to allow or require entities that provide public services to request NINs as a condition for providing the services. Nevertheless, it is my belief that the directive by the NIMC to telcos together with the threat of withdrawal of their license are illegal.

This is because telecommunication services are not among the transactions that require NINs under the Act. Even if NIMC acted within the bounds of its enabling law under Sections 27 and 31, the application of its directive would have begun from the date of publication of the said gazette or regulation.
For instance, only mobile phone lines procured from the date the regulation came into force would have required NIN linkage. Hence, the regulation would not have had retroactive effect such that it would affect the validity of previously registered SIM cards.
In terms of the penalties for infractions as prescribed in the Act, carrying out transactions that require NINs without requesting the number is an offence under section 29 of the Act. Such offence is punishable with a fine of not less than fifty thousand naira or imprisonment for a term not less than six months or both for erring individuals. However, for body corporates, the fine is not less than one million naira. Chief executives, line managers or officers of erring institutions are also liable to fines of one million naira each. There is no provision in the law for the withdrawal of licences.

In a letter addressed to President Muhammadu Buhari, the Socio-Economic Rights and Accountability Project (SERAP) put it succinctly: “Blocking Nigerians from using their SIM cards would amount to a blatant violation of their rights to freedom of expression and access to information, and have a ‘chilling effect’ on the enjoyment of other human rights.” The government must give proper regard to the legality of its actions before they are carried out.

Funmilayo Odude, a Financial Nigeria columnist, is a Lagos-based legal practitioner, and a public affairs analyst.