Leveraging constitutional review to combat retrogressive communication surveillance laws in Francophone Africa

Abstract

An important feature of the revival of constitutionalism in Francophone African countries has been the establishment of constitutional courts with the power to review the constitutionality of laws and other norms before they are enacted or implemented. Constitutional review was intended not only to ensure the balance between the three traditional powers but also to protect hard-won constitutional rights and freedoms, particularly in countries where the pre-1990 judicial system was used to undermine individual rights and freedoms. With the growing interest in digital technologies and space as new platforms for democratic expression, several Francophone African states have devised new laws and mechanisms to stifle online and offline expression. While the adoption of these laws may be justified by the need to protect the government’s legitimate purposes, they are mostly intrusive and unlawful under constitutional and international human rights law. The question then arises as to whether constitutional review in Frenchspeaking African countries is well equipped to prevent the enactment and implementation of retrogressive communications surveillance laws and, if so, whether it has been used successfully to that end. The article starts by providing an overview of communication surveillance legal norms in Francophone Africa before confronting them with emerging constitutional and international human rights standards. It then examines the potential for constitutional review to prevent the enactment or implementation of regressive communication surveillance acts and actions before it assesses the potential for mobilising against such laws through constitutional review. The article concludes by arguing that while constitutional review is well equipped to prevent the enactment of retrogressive communications surveillance laws, it has not been effectively used by judges and civil society groups in Francophone Africa. The judicial activism and culture of constitutional litigation that is commonplace in many English-speaking jurisdictions can be emulated to stop the descent into digital authoritarianism.