The Nigerian police force has a popular phrase which you will find displayed in most police stations. It says: The Police is your friend. But the average Nigerian does not know this to be true. The high levels of police violence coupled with the absence of accountability has sparked social movements such as #EndSARS and has seen more people wielding their phones to record police brutality. This has however been met with greater abuse of the witnesses, such as Kofi Bartels, who was tortured, arrested and detained for attempting to film the police while they beat up a young boy. Also, Mary Ekere, a journalist, was kept in prison custody for three days and arraigned before a magistrate court on charges of assault and obstruction of duty, all because she took pictures of government agents harassing street traders.
When WITNESS talks about the “Right to Record,” we are primarily referring to the right to take out a camera or cell phone and film the military and law enforcement without fear of arrest, violence, or other retaliation. The right to record is an internationally recognized right, provided for under article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) and further validated through the special procedures of the United Nations.
If we momentarily take our focus off international law, we also find provisions at the regional level. Article 9 of the African Charter on Human and Peoples’ Rights, for example, protects the right to receive and disseminate information. In a move to strengthen this provision, the African Commission on Human and Peoples’ Rights in 2002, adopted the Declaration of Principles on the Freedom of Expression in Africa, which stipulates that “no one shall be subject to arbitrary interference with his or her freedom of expression”. Whether it is a civilian with a mobile phone or a professional journalist using their camera, the law upholds the right to record as part of the right to freedom of expression.
The proliferation of camera-enabled mobile phones has resulted in the emergence of a new generation of human rights advocates who commit acts of activism even though they may not consider themselves human rights activists. Through taking out their phones to film, they help expose abuse and make it possible to secure justice. Unfortunately, the law to protect these brave acts of citizen journalism has not been adequate. The civic space is increasingly shrinking and police officers are brutalizing people for daring to expose the truth. Even when people cite provisions of the law as a defense for filming, they often get harassed even more.
The situation is not peculiar to Nigeria alone. In South Africa, there have been cases of citizens being arrested and jailed for filming police misconduct. Journalists have also been forced to delete footage from their camera. What is more disconcerting is the fact that South Africa has policing guidelines such as Standing Order 156 that supports the right to record and also prohibits the intimidation of journalists by law enforcement agents.
I recently attended a gathering of human rights activists who are using video to create change. During one of the sessions, I said: “under international law, you have a right to record” and immediately some questioned this as it did not align with their daily experiences. Ayanda Mncwabe-Mama, a documentary filmmaker from South Africa, pushed back saying that the law offered no protection in reality. This is because in the course of her work, she has been detained, has had her camera confiscated and her footage deleted by police officers.
Radi Dhan from Libya also later shared with me that the international protections “do not apply back home.” He went further to say “I have been hassled by the authorities… I just make sure I comply with them because they have an AK47. It makes me scared sometimes but it has not stopped me from doing what I have to do. I know I am not the only one facing this. It is everyone in this domain.”
It is clear that in Africa, and across the world, the right to record has never been more in need of urgent protection as it is now. As people continue to risk their lives to expose the truth, there must be a guarantee that they will not become victims themselves. It is also important for activists to familiarize themselves with the laws that apply in their country – especially those relating to the right to record and also the right to disseminate such recording. In Tanzania, for instance, the government in 2018, enacted legislation that imposed restrictions on the dissemination of online content. The legislation went as far as prohibiting the online publication of any content showing physical violence, which in effect prevents the dissemination of videos showing police brutality.
While we wait for domestic and international protections to become more robust and adhered to, here are some best practices when filming a police abuse that you are witness to:
- Stay safe – it is of utmost importance that you do not put yourself or others in harm’s way while recording. If recording a video will endanger your personal safety (or the safety of those you’re filming) then don’t do it. You may attempt to record audio but if that will also be unsafe, you should not. Depending on the situation, you could try filming from a safe distance, or not filming peoples’ faces. Keep in mind that someone could be identified in a video even if only part of their body is in the image, through things like distinctive tattoos or clothes, or even background information like a building/landmark.
- Livestream – real time filming onto social media platforms is a powerful way of ensuring accountability, especially in cases where the police might want to prevent you from filming or when they move to delete your footage. Recently, Mildred Owiso – a Kenyan activist, was arrested in her home without a warrant. Her ability to livestream before her phone was confiscated led to a public outcry calling for her release. When I reached out to Mildred to reflect on that moment, she said: “The greatest privilege anybody can have is to be bold, courageous and daring in times of injustice. We hope the video recording in such times stand firm and help, the victims [secure] justice eventually.”
- Backup – it is good practice to back up your footage manually. There’s also the option of the cloud, but important to consider the security of these services. In some countries, Apple and Google have provided data from the cloud to law enforcement so depending on your vulnerabilities, take this into account as well. In the case of Kianga Mwamba, after the police forced her to delete the video she captured of them brutalizing a man, it was later discovered that her daughter had set the phone to automatically back up on the cloud. The footage was subsequently retrieved and used in a civil suit against the Baltimore Police Department from which she got justice.
Beyond these strategies, I encourage civil society groups and individuals to embark on strategic litigation through which we can hopefully begin to see courts pass judgments in favour of the right to record, just as we have witnessed in the United States.
We have realized the power of video in securing justice. Governments know it too. This is why the right to record must be protected by all means as it remains one of the few ways of exposing the truth and holding government and its agents accountable.