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

 Trésor Muhindo Makunya
 LLM LLD (Pretoria); Licence en droit public (Goma)
 Associate Professor, Faculty of Legal and Political Sciences, University of Goma, DRC; Extraordinary Lecturer, Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa
 https://orcid.org/0000-0002-5645-1391
 This email address is being protected from spambots. You need JavaScript enabled to view it.

 Jonas Kakule Sindani
 LLM (Pretoria); Licence en droit public (Goma)
 Doctoral Candidate, Faculty of Law, Université Catholique de Louvain, Belgium and Université Catholique de Bukavu, DRC
 https://orcid.org/0009-0001-4838-9014
 This email address is being protected from spambots. You need JavaScript enabled to view it.

 Edition: AHRLJ Volume 25 No 2 2025
 Pages: 886 - 911
 Citation: TM Makunya & JK Sindani ‘Leveraging constitutional review to combat retrogressive communication surveillance laws in Francophone Africa’ (2025) 25 African Human Rights Law Journal 886-911
 http://dx.doi.org/10.17159/1996-2096/2025/v25n2a17
 Download article in PDF

Summary

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 French-speaking 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.

Key words: communication surveillance; constitutional review; constitutional court; decentralised review; constitutional culture

1 Introduction

Constitutional review and the creation of constitutional jurisdictions are some of the neoliberal hallmarks of the constitutional transformation Francophone African countries underwent following the post-1990s constitutional revival.1 The main purpose of this constitutional ‘revolution’ was to guarantee the supremacy of the constitution, as the supreme law of the land, against attempts at circumventing its normative standards when laws and other legal acts inimical to constitutional standards are adopted.2 These standards are diverse in form and scope but aim to achieve the ideal of constitutionalism, namely, the necessity that political and administrative powers should be exercised within the confines of the constitution and that the constitution must limit powers.3 Lest we nurture ‘constitutions without constitutionalism’,4 basic elements of constitutionalism must be entrenched in constitutions and observed in practice to ‘tame executive authoritarianism’.5 Constitutional jurisdictions in Francophone Africa are growing in number6 and constitutional review, understood as the process by which courts evaluate the constitutionality of laws, is becoming a geopolitical tool,7 the more so in multiracial and politically divided countries where the law (constitutional adjudication in this case) is increasingly being relied upon by racial and political minorities to generate socio-political transformation that they could otherwise not obtain through regular democratic channels.8 The recent trends in West Africa also show the (mis)use of constitutional courts by military regimes to legitimise their military takeover of power when facing international discontent from regional and sub-regional organisations to hand over power to a civilian leadership.9

Despite the diversity of constitutional norms across Africa, constitutional adjudication of fundamental rights and freedoms has gained traction over the past three decades or so.10 Regardless of this diversity, in several African countries, constitutional review and human rights have been instrumental in preventing retrogressive bills from being assented into law or repealing legislation that could curtail the prospect for a culture of constitutionalism to prevail on the African continent.11 Owing to the emerging importance and indispensability of the internet and new communication and information technologies12 and considering efforts by several Francophone African countries to adopt communication surveillance laws, the question arises as to whether and how constitutional review can be leveraged to prevent the enactment or implementation of these laws and measures. Expressed differently, is constitutional review a tool that can be used against communication surveillance laws which restrict the civic space and stifle political debates in Francophone African countries? If constitutional review aims to safeguard the supremacy of the constitution, has it been used to address retrogressive communication surveillance laws, understood here as those surveillance laws and measures that fail to meet the test of constitutionality?

Understanding the relevance of these questions requires some contextual information on how communication surveillance has recently been used in selected Francophone African countries to undermine citizen mobilisation against undemocratic projects. In Togo13 political opposition parties claimed that their phones had been tapped and controlled using the Pegasus spyware.14 Similarly, Moroccan authorities used the infamous Pegasus software to target human rights defenders and an academic and independent journalist for their activities.15 In Rwanda, Pegasus software was used by Rwandan authorities to spy on the daughter of an opposition leader.16 Early in 2012, it was recorded that the government produced emails, phone calls and text messages from opposition activists in court as evidence in Rwanda to the complete surprise of their authors.17 In the Democratic Republic of the Congo (DRC), following mass protests in 2015 against constitutional change, three political opposition members of parliament reported that their phone numbers had been blocked for more than four months.18 Similar experiences can be found throughout Africa.19

To provide a general illustration of how litigants and other interested parties can use constitutional review to combat retrograde communications surveillance laws and actions, the analysis covers 11 countries: Algeria, Burundi, Chad, Congo (Republic of), DRC, Morocco, Niger, Rwanda, Senegal, Togo and Tunisia. These countries, apart from having constitutional jurisdictions in place, are selected for they have enacted communication surveillance laws that can potentially affect the exercise of human rights. Given that constitutional review in French-speaking African countries has been largely influenced by the French model of constitutional review, we hope that the comparative results obtained by studying the effectiveness of constitutional review in dealing with communications surveillance laws in selected countries can be applied, with slight adjustments, to countries sharing similar constitutional review systems. The article adopts an analytical approach to exploring how constitutional control can be used against retrogressive communication surveillance laws, a doctrinal-positivistic review of constitutions and communication surveillance or criminal laws and a comparative approach to constitutional adjudication in Africa.

In the next part we review the nature, content and scope of communication regulations where we briefly unpack the meaning of communication surveillance before providing examples of laws that facilitate communication surveillance. The part ends with an examination of whether these laws are consistent with international law and whether they are consistent with constitutional (digital) rights.20 Part 3 examines the potential role of constitutional review in curbing retrogressive communication surveillance, while part 4 identifies possible ways in which mobilisations against communication surveillance laws can be rendered effective. In conclusion, we argue that while constitutional review is well equipped to prevent the enactment of retrogressive communication surveillance laws, it has not been effectively used both by judges and civil society groups to prevent the enactment of such laws. The judicial activism and culture of constitutional litigation that is commonplace in many common law African countries can be emulated to stop the descent towards digital authoritarianism.21

2 Meaning, nature and scope of communications surveillance laws in Francophone Africa

To meet their human rights obligations under international law, align their legislation to the evolving digital space and combat cybersecurity threats, several Francophone countries have adopted laws on new information and technologies that contain provisions on communication surveillance (communication surveillance laws). Communication surveillance laws seem to protect ‘legitimate’ governmental aims (national security and safety, health and the rights and freedoms of others). This is understandable given that both international and domestic human rights systems are cognisant of the non-absolute nature of some human rights. In most cases, however, communication surveillance laws have been criticised for their adverse effects on online freedom of internet users.22 To determine the extent to which they are detrimental to the consolidation of democracy and the development of a culture of accountability, the first sub-part examines the meaning of communications surveillance before analysing communications surveillance laws in selected francophone countries. The last portion of this part assesses the treaty law and constitutional validity of communication surveillance laws.

2.1 Meaning of communication surveillance

Communication surveillance is an action that consists of accessing, lawfully or unlawfully, electronic communication irrespective of the reason for which it is conducted.23 According to the United Nations (UN) Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, it entails ‘the monitoring, interception, collection, storage and retention of information communicated, relayed or generated by communications networks’.24 Also, ‘the monitoring, interception, collection, analysis, use, preservation and retention of, interference with, or access to information that includes, reflects, arises from or is about a person’s communications in the past, present or future’ all form part of communication surveillance.25 This understanding makes communication surveillance broad and a double-edged sword in a democratic regime. While it can be used to preserve lives in exceptional circumstances, for example, to trace individuals who were infected during the COVID-19 pandemic,26 it can be a tool that authoritarian regimes may quickly turn to their favour to consolidate their power and stifle democratic competition. It is perhaps for its adverse effects that under General Comment 16 adopted on 8 April 1988, the UN Human Rights Committee held that ‘surveillance, by electronic or other means, interception of telephone, telegraph or other communications, eavesdropping and recording of conversations should be prohibited’.27 Principle 41(1) of the African Commission on Human and Peoples’ Rights (African Commission) Revised Declaration of Principles of Freedom of Expression and Access to Information in Africa (Freedom of Expression Declaration) adopted in 2019 provides that ‘[s]tates shall not engage in or condone acts of indiscriminate and untargeted collection, storage, analysis or sharing of a person’s communications’.28

The strong protection against communication surveillance, while building on the right to privacy,29 which is widely recognised under modern African constitutions,30 rests on a combined reading of bills of rights and binding and non-binding international (human rights) instruments. As will be shown later, these normative standards serve as powerful and precise tools that courts with constitutional jurisdiction can use to prevent the enactment or implementation of communication surveillance laws that violate the constitution. It is for this reason that some Francophone African countries, as a matter of principle, have prohibited communication surveillance unless exceptional circumstances so require.31 The Moroccan Constitution of 2011 is even more explicit to that effect by stating that ‘[p]rivate communications, in any form whatsoever, are secret. Only the judiciary can authorise, under the conditions and according to the forms provided for by the law, access to their content, their total or partial disclosure or their invocation against anyone.’32

However, the above provision is a mixed blessing.33 On the one hand, it shows the awareness of the drafters of the Constitution of the harm that unnecessary surveillance can cause to individuals. The provision protects communications irrespective of the channel through which they are made. In that regard, this provision seems progressive because new technological developments have brought to the fore online platforms that have been instrumental in allowing people to express themselves. As a constitutional norm, the provision can readily be relied upon in the process of constitutional review. The provision also requires the involvement of judges as an authority tasked to permit lawful interception of communications. Some Francophone constitutions explicitly name judges as the ‘protectors’ or ‘guardians’ of fundamental rights and freedoms.34 As a consequence, depending on the nature of the acts which unlawfully permit communication surveillance, individuals may approach administrative, judicial or, where permitted, constitutional judges to see to it that their right to privacy is respected. On the other hand, the downside of a provision such as article 24 of the Constitution of Morocco is the claw-back clause in which it is clothed. A similar clause can be found under article 31 of the DRC Constitution:

All persons have the right to respect for their private life, for the confidentiality of their correspondence, telecommunications and any other form of communication. This right may only be interfered with in the cases provided for by the law.

While the Constitution is silent on the meaning of ‘the law’, it can be assumed that this includes laws of general application voted by Parliament and acts having the force of law.35 The clause in both constitutions gives the possibility for the legislature and other normative authorities to adopt communication surveillance acts to protect a government’s legitimate purpose.36 The nature and extent of this purpose may vary depending on the nature of the political regime in place or the circumstance that led to the adoption of the act. Threats of espionage, terrorism and sabotage against the activities of agents of foreign powers all can constitute grounds for violating the right to privacy.37

2.2 An overview of communication surveillance laws in Francophone Africa

As alluded to earlier, some Francophone African countries have passed laws to enable and regulate the exercise of critical human rights online and offline.38 However, some of these laws permit the interception of communications without ensuring that adequate, independent and robust mechanisms are in place to prevent the resort to unnecessary surveillance. The way in which laws are framed provides an opportunity for public authority to intercept communications. A survey of these laws in the following paragraph reiterates the positive role constitutional review could play if used to bring them in conformity with the constitution.

Several national laws permit the interception of communications by the prosecutor as part of ongoing investigations to discover facts and other information that would otherwise be difficult to obtain by other investigative means. Considering the recklessness of prosecutors in most Francophone jurisdictions and their acquaintance with executive officials on whose authority they depend,39 these provisions may be used to undermine the right to privacy primarily because no court order is required. In the DRC, article 127 of the ICT Act 2020 empowers the Prosecutor General of the Court of Cassation, the apex court in judicial matters, to order the interception, recording and transcription of telecommunications and information and communication technologies when necessary for the determination of truth in a case. The provision gives much discretion to the prosecutor by using vague and ambiguous language. In Burundi, article 69 of Act 1/09 of 11 May 2018, amending the Criminal Procedure Code, empowers the Public Prosecutor’s Office, when the needs of the investigation so require, to order the interception, recording and transcription of telecommunication correspondence. In the Republic of Congo, article 157 of Act 9-2009 of 25 November 2009 regulating the electronic communications sector, although it prohibits the interception of private communications, grants an exemption to the prosecutor to carry out such interceptions when required to ensure the enforcement of criminal laws. As in the DRC situation, the Act does not obligate the prosecutor to seek a court order before they can proceed with their communication surveillance activities. In Senegal, article 12 of Act 2011-01 of 2011 on telecommunications provides that a judge or police officer, for prosecution or investigation, or the enforcement of a judicial decision, may require telecommunications operators and telecommunications network or service providers to make available relevant information stored in the computer systems they administer.

Other laws surveyed in this study empower officials other than the prosecutors to proceed with the interception of communications either with or without the permission of the prosecutor or the judge. In Chad, article 27 of Act 009 of 2015 on cybersecurity and cybercrime provides that judicial police officers and authorised agents of the National Agency for Computer Security and Electronic Certification (ANSICE) may use appropriate technical means to collect or record in real-time data relating to the content of electronic communications. This is a worse form of violation of the right to privacy provided for under article 17(2) of the Constitution of Chad given the discretion provided to the authorities about when to resort to the surveillance or which means can they use to that effect. In Algeria, article 65(8) of Act 06-22 of 20 December 2006 on the Code of Criminal Procedure authorises the public prosecutor or a judicial police officer authorised by the public prosecutor, the investigating judge to ask any qualified agent of public or private service, unit or organisation in charge of telecommunications to assist them in the monitoring or interception of communications. However, a written authorisation is required and must include all the information needed to identify the communication to be intercepted, the places targeted, and the offence that justifies the use of these measures, as well as the duration of the interception.40 Unlike provisions so far reviewed, article 65(8) of the Criminal Procedure Code of Algeria attempts to ensure that communication surveillance is conducted transparently. In Morocco, under article 108 of Act 22-01 of October 2002 on criminal procedure, as amended by the Anti-Terrorism Act of 2015, the investigating judge and the public prosecutor are authorised, under certain conditions, to initiate surveillance operations, including the interception, recording, copying and seizure of telephone calls and any other telecommunications.

The grounds for initiating communication surveillance are generally broad and vague. In Rwanda, Act 48/2008 of 9 September 2008 on the interception of communications in the interest of national security authorises the acts of listening, recording, storing, decrypting communications, or conducting any other type of surveillance on voice and communication data without the knowledge of the user and their explicit authorisation. The warrant for interception is given to the prosecutor at the request of the security services. In Togo, article 92 of Law 2012-018 of 17 December 2012 on electronic communications empowers the Prime Minister, and the ministers in charge of the economy and finance, defence, justice, security and civil protection, to initiate the interception of communications and electronic content to protect state security, public order, public health, morality, or fundamental rights and freedoms, safeguard Togo’s scientific and economic interests, or prevent and fight against terrorism, drug trafficking, money laundering, crime, cybercrime and human trafficking.

The above normative standards on communication surveillance are compounded by the existence of data privacy regulators that lack the required independence to serve as bulwarks against unlawful communication surveillance. They seem to be all but transparent41 and independent.42 Article 13(6) of the 2020 DRC ICT Act empowers the Autorité de Régulation des Postes, des Télécommunications et des technologies de l’Information et de la Communication (ARPTIC) to ‘regulate and control the protection of personal data’ whilst placing ARPTIC under the tutelage of the Ministry of telecommunications and ICT.43 As an institution supporting digital democracy,44 its independence must be placed beyond reasonable doubt. The independence of its predecessor, the ARPTC, was problematic and despite criticisms about government manipulations of decisions by the ARPTC, the ICT Act seems to have disregarded both these domestic concerns and international standards on the independence of the regulatory body.45 In Niger, the Autorité de Régulation des Communications Électroniques et de la Poste (ARCEP) can intercept personal data,46 even though this body is placed under the administrative authority of the Prime Minister47 who gets to call the shot on how it functions. In Tunisia, the 2013 Decree 2013-4506 on the creation of the Agence Technique des Télécommunications (ATT) is faulty when it comes to transparency of the ATT. While article 5 requires the submission of annual reports by the agency’s director-general to the Ministry of ICT, there is no requirement that these reports be made public. Furthermore, the directors of the ATT are appointed and removed by the Minister of ICT,48 under whose control the Agency operates.

The foregoing demonstrates the existence of normative and institutional legal standards that can be used to undermine the right to privacy and associated rights online and through digital technologies. There are three problems constitutional review, if effectively used, could address: the fact that several laws confer on the prosecutor, judicial officers and other state agents unchecked powers that may be used to undermine the right to privacy; not only that the judge is disempowered to play their role as guarantor of human rights, but the prosecutor has the discretion to determine how they proceed with communication surveillance and the duration of such a process. It is suggested that the institutionalisation of court orders on communication surveillance would foster a culture of justification and accountability. The prosecutor and agents authorised to proceed with communication surveillance would have to provide substantial reasons justifying resorting to surveillance and whether less intrusive means could be envisaged.49 The other problem is the absence of notification of the decision authorising communication surveillance to the person being controlled or, if this notification would defeat the purpose of the interception of communications, to be notified after surveillance has ended.50 In a democratic setting, notification, whether pre- or post-surveillance, would serve the purpose of allowing the individual to approach judges against communication surveillance when founded on grounds that are not legal and eventually seek remedy. On post-surveillance notification, Madlanga J eloquently noted that it would ‘go a long way towards eradicating the sense of impunity’ and can result in the ‘reduction in the numbers of unmeritorious intrusions into the privacy of individuals’.51 The last problem pertains to the judge who should be established to provide permission to intercept communications and their functional and institutional independence given that most communication surveillance contravene human rights.

2.3 Inconsistency of communication surveillance laws with fundamental rights

Communication surveillance laws must be consistent with the constitution and international human rights treaties. When they are conducted, whether lawfully or unlawfully, interceptions of communications affect the exercise of the following rights that are widely recognised under modern African Francophone constitutions: the right to privacy and secrecy of correspondence;52 the right to freedom of expression and opinion;53 the rights to freedom of assembly,54 association,55 conscience;56 and the right to political participation.57 Aspects of these rights have been developed by the African Commission through soft-law instruments based on the African Charter on Human and Peoples’ Rights (African Charter), a treaty that all Francophone African countries except for Morocco have ratified. Given the monist approach to international law, Francophone African constitutions generally adopt the African Charter and its interpretative materials supplement the constitutional protection of the right to privacy and can readily be used either as normative standards or interpretive materials to assess the validity of communication surveillance actions. 58 The constitutional court can rely on these norms to decide over the constitutionality of a law or a regulation since, in several Francophone countries, they form part of the bloc de constitutionnalité (constitutional corpus).59 The question that arises is whether the unchecked powers conferred on public authorities to proceed with communication surveillance, the absence of notification or the weak institutional arrangements established to protect personal data (regulators), as demonstrated in part 2.2 above, meet constitutional and international human rights standards for their lawfulness.

Human rights are not absolute. They can be limited when such a limitation is legal, necessary and proportionate and serves a legitimate governmental purpose. Principle 41 of the Declaration enjoins states to conduct targeted communications surveillance if authorised by law, which in turn must be consistent with international human rights law and standards and based on specific and reasonable suspicion that a serious crime has been or is being committed or for any other legitimate purpose.60 In addition, states shall ensure that any law authorising targeted surveillance of communications provides adequate safeguards for the right to privacy, including prior authorisation by an independent and impartial judicial authority; due process guarantees; specific limitations on the duration, manner, location, and scope of the surveillance; notification of the decision authorising the surveillance within a reasonable period following the conclusion of the surveillance; proactive transparency on the nature and extent of its use; and effective monitoring and regular evaluation by an independent oversight mechanism.61

The African Commission’s Resolution ACHPR/Res.573 (LXXVII) 2023 condemns mass surveillance and urges states to limit surveillance to targeted measures authorised by law, subject to prior authorisation by an independent and impartial judicial authority, necessity/proportionality tests, and independent oversight. It further calls on states not to weaken encryption and to ensure effective remedies for victims of arbitrary surveillance.62 According to the International Principles on the Application of Human Rights to Communications Surveillance (Necessary and Proportionate Principles)63 adopted in May 2024, communications surveillance law must meet, among others, the principle of necessity, which provides that ‘communications surveillance must only be conducted when it is the only means of achieving a legitimate aim, or, when there are multiple means, it is the means least likely to infringe upon human rights’.64 The principle of adequacy further requires that ‘any instance of communications surveillance authorised by law must be appropriate to achieve the specific legitimate purpose identified’.65 Communications surveillance laws that are not sufficiently clear and precise in that they do not specify the scope and limits of the powers of prosecutors and other authorities empowered to conduct communications surveillance fail to comply with the principles of necessity and adequacy. Communication surveillance laws discussed in part 2.2 above contravene basic principles of human rights law provided for under the constitution and international human rights norms which are an integral part of the constitution and must be observed by every person, including state organs.

From a constitutional perspective, it is relevant that a mechanism established to prevent the entry into force of laws that may violate the constitution or adjudicate over cases involving the violation of the constitution is used to prevent their entry into force or when they are in force, to prevent that they produce legal effects that will subsequently hamper the prospect for realising digital rights. Constitutional review, therefore, has the potential to prevent these retrogressive laws from leading to constitutionally unfriendly outcomes.

3 Preventive, corrective and mobilising role of constitutional review

Constitutional review or the control of the constitutionality of laws and acts having the force of law can effectively be utilised to prevent retrogressive communication surveillance laws due to the power conferred on constitutional jurisdictions to protect the constitutional order. From this perspective, constitutional review can act as a preventive tool when the bill has yet to be assented into law or a corrective tool when the law is already in force. Above all, constitutional review can serve as a mobilising democratic tool against surveillance by enabling civil society or organised citizens to exert pressure on those who wield political power so that the latter is not exercised in an ‘unguided or unbridled way’.66 As Mogoeng J aptly stated in the South African context,

all presidential or executive powers must always be exercised in a way that is consistent with the supreme law of the Republic and its scheme, as well as the spirit, purport and objects of the Bill of Rights, our domestic legislative and international law obligations. Our President is never at large to exercise power that has not been duly assigned. Crucially, public power must always be exercised within constitutional bounds and in the best interests of all our people.67

From this perspective, any communication surveillance laws should be in the interests of the people. Constitutional review can help to ascertain whether these laws are fostering communal interests.

The types of constitutional review in Africa have been influenced by legal traditions inherited from colonialism.68 Unlike most Anglophone African countries with a common law legal tradition that have opted for a decentralised model of constitutional review,69 Francophone African countries with a civil law legal tradition have opted for a centralised model of constitutional review.70 The latter, which is the focus of this article, is characterised by the unitary nature of the constitutional body.71 The constitutional jurisdiction acts as the court of first and last instance and is generally placed outside the hierarchy of the judiciary.72 While generally known as ‘court’, constitutional jurisdictions in the Francophone world have originally not been conceived as ‘judicial bodies’ where individuals would appear to defend their subjective rights. Rather, they have emerged as quasi-judicial, quasi-political bodies composed of judges and political actors to deal with the most pressing constitutional law issues, regarded then as highly political concerns. Although recent transformations brought about by the third wave of democratisation have also transformed the mandate of some of these jurisdictions in particular to deal with subjective human rights issues, the original conception of constitutional courts in the Francophone world as non-judicial organs tasked with dealing with politically contentious issues has affected how constitutional judges perceive their role within the polity and how citizens interact with constitutional courts.73

Modern Francophone African constitutions enshrine two types of review of constitutionality through which communication surveillance laws may be controlled, namely, a priori or abstract review and a posteriori or concrete review. Abstract review takes place before the promulgation of the law. It has a preventive role, which helps to filter out laws that are potentially contrary to the constitution before they are promulgated. The referral of a bill to the constitutional court by the competent authority suspends its promulgation until the court rules on the conformity of the law with the constitution.74 If the provisions of the bill are inconsistent with the constitution, the law cannot be promulgated.

However, the nature of laws that can be subject to abstract review varies from country to country. While in some constitutions, abstract review is mandatory for all laws,75 whether organic or ordinary laws,76 or all acts having the force of law,77 other constitutions make such a review optional for ordinary laws and other acts having the force of law.78 An organic law differs from an ordinary law in that it defines modalities of application of constitutional provisions, while an ordinary law is passed by parliament and regulates one of the areas explicitly provided for under the constitution. The former is generally viewed as a constitution-implementing law. In other words, it is the constitution’s extension. It is for this reason that most constitutions enjoin that organic laws undergo abstract constitutional review.

Making the review of organic laws mandatory and that of ordinary laws optional can lead to the enactment of laws that pave the way for unlawful communication surveillance when adopted in the form of ordinary bills like in Rwanda79 or a decree (a regulation adopted by the government)80 like in Tunisia. Better protection of fundamental rights from unlawful violations through surveillance may require that they are reviewed before they are assented into law irrespective of their nature. We are not arguing that only abstract review is well equipped to expunge these laws from the legal system because we are aware that other review mechanisms exist. Our main contention is that compulsory abstract review for both ordinary and organic laws, as is the case in Benin, minimises the potential for a law that can lead to human rights violations to be enacted.

Furthermore, abstract review is performed under strict constitutional deadlines which can leave little time for constitutional jurisdictions to conduct a thorough review of communication surveillance bills. To put this in context, once the bill has been referred to the court by the authorities empowered by the constitution to do so,81 the constitutional court has either 30 days82 or 15 days to decide.83 Worse still, in case of an emergency, the timeline can be shortened to eight days at the government’s request. The government can use these short deadlines to expedite the adoption of laws that violate human rights if the court fails to decide within the time limit. Article 139 of the DRC Constitution allows for a bill to be automatically seen as being constitutional if the court has not handed down its judgment within the allocated period. Constitutional review of laws is not the only mandate of constitutional courts and, at times, they can be swamped with many other petitions, for example on elections, and criminal accountability of prime ministers or heads of state.84

As abstract review is not open to everyone across Francophone constitutional jurisdictions, this limits its ability to serve as a bulwark against retrogressive communication surveillance laws given that political actors who are empowered to approach the court in this type of review may have little incentive to have laws, emanating from them in most cases, reviewed by the Constitutional Court unless such a review is made mandatory.

Concrete or a posteriori constitutional review can address some of the weaknesses of abstract review. The a posteriori constitutional review takes place after the promulgation and the entry into force of a law. While it can pertain to every law irrespective of whether it has previously been declared constitutional, Constitutional Courts tend to be reluctant to reverse provisions of laws they have already declared as being consistent with the Constitution. Be that as it may, in this type of review, the Constitutional Court can be approached directly or indirectly. Any citizen may directly approach the Constitutional Court against laws they believe to be unconstitutional. However, in some jurisdictions, the direct petition is possible six months following the enactment of the impugned law or provision.85 The six-month period reduces the likelihood that constitutional review is used to expunge from the legal system laws that were enacted over six months. The direct petition is complemented by an indirect petition. The latter, also known as the certified question of constitutionality, occurs when a law about to be applied by judges other than constitutional judges, is believed to be unconstitutional by parties or the tribunal.86 In this case, the tribunal approaches the Constitutional Court to check the validity of the law to determine whether it can be applied to ongoing proceedings. The question can be raised at any time of the procedure and the tribunal is obliged to stay proceedings. As will become clear later, this approach can be mobilised by activists to control communication surveillance laws that have not been the subject of a thorough abstract review.

Abstract and concrete review can thus be meaningfully mobilised to prevent the application of retrogressive surveillance laws and expunge them from the legal system. Relying on the constitution and norms with constitutional status, some Constitutional Courts in Francophone Africa have, over the years, struck down laws that violate human rights and protected human rights when invoked by individuals, thus positioning abstract and concrete constitutional review as mechanisms that protect both subjective human rights and objective constitutional norms.87 Many cases before the Constitutional Courts of Benin and the DRC, among others, show that constitutional review is well equipped to react against retrogressive communication surveillance laws.88 However, as Moseneke J made it clear,89 unless individual victims of these laws bring cases before courts including constitutional jurisdictions, judges themselves cannot go out and look for them. Constitutional review can only be effective if individuals are aware of how and when they can mobilise against communication surveillance using courts and the constitution.

4 An assessment of the potential for mobilising against communication surveillance laws through constitutional review

A concept that has gained much attention, mainly in the South African constitutional discourse, concerning constitutional review is ‘constitutional lawfare’: the strategic use of the constitution and judicial institutions to further or hinder democratic ideals and constitutionalism. Narrowing down the concept to constitutional courts, Dent believes that constitutional lawfare encapsulates the notion by which political matters are judicialised and courts are called to ‘uphold constitutional responsibilities (and) compensate(e) for institutional failures in the broader democratic space’. It also entails the use of legal process to ‘escape accountability’.90 Constitutional lawfare is a double-edged sword because it can be used by powerless minority groups to counter the majoritarian hegemony of other social and political groups as it can also be used by politicians to legitimise their actions.

In this article, we view constitutional lawfare as a liberating legal mechanism in the hands of civil society groups against regressive communication surveillance acts. Constitutional lawfare is critical to the understanding of possible mobilisation against retrogressive communication surveillance in most Francophone jurisdictions where these laws have reigned supreme without serious constitutional challenge. The lack of mobilisation from individual citizens, civil society organisations and pro-democracy groups means that these laws can hardly be challenged as political actors, in particular those in power, do not have sufficient incentive for those laws to be quashed. However, for constitutional review to be mobilised, several legal and practical conditions must be met before people can resort to existing means for mobilisation (constitutional review using the bill of rights as norms of reference). These two issues are dealt with in the subsequent parts.

4.1 Conditions for mobilising against retrogressive communication surveillance laws

Several conditions, both legal and socio-cultural, must be met in the Francophone world for serious mobilisations against retrogressive communication surveillance acts to take place. Legally, constitutions and laws organising procedures before constitutional jurisdictions should empower citizens to bring petitions before them irrespective of the nature of the constitutional litigation. Access to constitutional jurisdictions has been regulated differently across African Francophone constitutional jurisdictions based on whether it is a direct or an indirect petition.91 While the Constitutions of Rwanda,92 Burundi,93 DRC,94 the Republic of Congo95 and Benin,96 among others, allow for direct petitions against laws in addition to indirect petitions, in Niger,97 Côte d’Ivoire98 and Togo,99 individuals may only approach the court indirectly when they are parties to judicial proceedings before lower courts where issues of constitutionality arise. The Côte d’Ivoire Constitutional Council Act, however, empowers human rights organisations to bring before the council laws that violate human rights.100 The possibility for non-governmental organisations (NGOs) to approach constitutional jurisdictions in Burundi and Rwanda against regressive communication surveillance acts can be derived from the use of the concept ‘moral persons’ under the constitutions.101 The Constitution of DRC is not explicit with regard to juristic persons, although the use of ‘every person’ that may approach the Constitutional Court under article 162(2) could also imply juristic persons.

The main problem that can constitute an obstacle to the emergence of constitutional lawfare in matters of communication surveillance acts is the obligation imposed on litigants to prove that they have a direct interest to protect,102 public interest litigation being improbable before many Francophone African courts. Sections 38 and 167(6)(a) of the South African Constitution allow ‘anyone acting in the public interest’ to lodge complaints with courts.103 As Currie and de Waal argue, ‘effective enforcement of the Bill of Rights demands a broader approach to standing’.104 In practice, the Benin Constitutional Court allows petitions in the interest of justice to be adjudicated. It has also granted access to individuals whose petitions were inadmissible by arguing that, in cases of human rights violations, it could invoke its powers under article 121 of the Constitution to decide on allegations of human rights violations on its rights.

Mobilisation against retrogressive communication surveillance acts will also require a developed culture of litigation from individual petitioners, political actors, including those in power, and constitutional judges themselves.105 By a culture of litigation or constitutional lawfare, we mean the propensity to resort to courts as appropriate fora to settle social, economic and political matters arising in a polity especially when democratic channels (including parliament) have shown their limitations to solving such problems, for example, because they have been hijacked by a ruling coalition which enjoys a majority in parliament. Contrary to several Anglophone jurisdictions where citizens do take up matters of national concern before courts, citizens in Francophone African countries have demonstrated their readiness to suffer in silence in order not to challenge the established political ordering. This passive behaviour can be illustrated in many ways, for example, the existence of unchallenged regressive communication surveillance acts or the fact that acts that violated human rights during COVID-19 remained unchallenged.106 Political actors and judges must also be aware of their role in fostering democracy through courts. In instances of constitutional challenge, state organs, such as those in South Africa, should be able to appear and adduce their argument in court. Similarly, constitutional judges must be ready to deal with petitions submitted to them and not keep silent to avoid political controversies as the then Supreme Court of Justice acting as interim DRC Constitutional Court did concerning the review of the constitutionality of constitutional amendments in 2011.107 Importantly, the judicial approach to assessing the constitutionality of laws, especially at the abstract review stage, should further an article-by-article analysis so that each article in the proposed bill is confronted with relevant constitutional and international human rights norms and jurisprudence.

It is the combination of a culture of litigation from these three groups (citizens, political actors and judges) that can pave the way for constitutional lawfare in matters of communication surveillance. In Benin, several unconstitutional laws were annulled by the Constitutional Court at the instigation of citizens and political actors especially when the Court was composed of judges who understood both their mandate,108 namely, to shore up the supremacy of the Constitution through constitutional review and their vocation, namely, to pacify political space and promote core values of fundamental rights.109 The South African experience of constitutional litigation also shows that a combination of actions from civil society organisations, interest groups, institutions supporting democracy (chapter 9 institutions), the readiness of the state and its organs to defend their cases before courts (all of which we characterise as the demand of justice) and the ability of judges to uphold constitutional values and principles (which we characterise as the supply of justice) are what is needed for a culture of litigation to sink in. In other words, the dialectical relationship between the demand for constitutional justice and its supply must be leveraged for successful litigation against retrogressive communication surveillance laws. In most Francophone African countries, both the demand and supply of constitutional justice have remained very low, thus maintaining the status quo ante, chiefly, that laws inimical to constitutional values and principles can pass unchallenged. There are legal means by which citizens can mobilise against these laws before constitutional jurisdictions.

4.2 Legal means for mobilising against communication surveillance laws

The bill of rights and associated democratic values and principles, such as democracy, the rule of law and good governance, have become powerful legal arguments on which citizens can rely against laws and actions that they believe are inconsistent with the constitution. Some Francophone bills of rights are less detailed and contain fewer rights, numerically, than other bills of rights, but these shortcomings can be overcome by reading the bill of rights together with international human rights law norms and jurisprudence. The monist approach to international law most Francophone constitutions adopt provides, on paper, significant discretion to judges willing to adopt an interpretive approach that considers international law. As Chaskalson J submitted, and this is valid in the Francophone context, international human rights law provides normative and historical contexts within which several constitutional rights could be understood.110

Arguments based on international law may also progressively develop domestic constitutional law. Except for a few judges who still believe their domestic law is self-sufficient, looking at international law norms and jurisprudence, especially that of international human rights courts and bodies, could supplement the quality of domestic protection of human rights. The Constitution of Benin provides an additional means that can be mobilised alongside other constitutional provisions. The Benin Constitution explicitly constitutionalises rights and duties provided for under the African Charter,111 making it possible for the latter to be utilised by and invoked before the Benin Constitutional Court to substantiate their claims. Relatedly, article 19 of the Constitution of Burundi provides that rights and duties enshrined in international human rights instruments, including the African Charter, form part of the Constitution. While in practice, the Benin Constitutional Court has been reluctant to enter into a jurisprudential dialogue with regional human rights/community law courts/bodies, it will be self-defeating not to consider progressive normative standards, for example, in the area of digital rights developed by the African Commission, as they have the potential to improve the quality of rights protection locally.

5 Conclusion

Constitutional review in Francophone African countries has not been utilised to prevent the enactment of retrogressive communication surveillance acts or to sanction actions and other decisions which grant unchecked powers to prosecutors and other agents to proceed with communication surveillance. Unlike most Anglophone constitutional systems, the Francophone constitutional review system provides an opportunity to prevent the entry into force of several laws and standing orders of parliamentary chambers. This approach is important, for the law that would have harmed several individuals is annulled in advance and does not become part of the legal system. One would have expected that the process would be used to prevent the entry into force of regressive communication surveillance acts and actions. However, the mechanism is weak mainly because only designated political authorities can submit bills to constitutional jurisdictions for abstract review and, in many countries, only organic laws, not ordinary laws, can mandatorily be reviewed before they are assented into law. As most laws related to communication surveillance are ordinary laws, they are not subjected to abstract review, as was the case with the 2020 DRC ICT Act. Another weakness of abstract review that can negatively affect constitutional jurisdictions’ ability to prevent retrogressive communication surveillance laws is the approach review judges use. Instead of an article-by-article analysis of the proposed bill by confronting it to each bill of rights provision, the approach to review is generally holistic. The shortcoming of abstract review could be cured by concrete review if several conditions for this to happen were met. Constitutional review, and constitutional courts in general, cannot serve the purpose for which they were established, to uphold the supremacy of the constitution, in the absence of an awakened citizenry that is ready to challenge any unconstitutional behaviours and of judges who are conscious of their mission and vocation in democracies. The South African culture of constitutional lawfare and the positive attitude of several constitutional judges, some of whom have acknowledged their status as ‘activists’, are clear evidence of what constitutional review can achieve if meaningfully utilised by both the demand and the supply side.