Case Summary and Outcome

The Community Court of Justice of the Economic Community of West African States (ECOWAS/Court) found that the Republic of Senegal violated the right to freedom of expression and the right of access to information under Article 9 of the African Charter on Human and Peoples’ Rights and Article 19 of the International Covenant on Civil and Political Rights, by imposing arbitrary internet and social media shutdowns. The case arose from the Senegalese government’s complete internet shutdowns during protests following the conviction of opposition leader Ousmane Sonko, citing the need to curb the spread of “hateful and subversive messages.” The Court reasoned that access to the internet and related services is an integral component of freedom of expression and the right to information, and that any restriction must meet the requirements of legality, legitimate purpose, necessity, and proportionality. It found that Senegal’s laws did not specifically authorize shutdowns, that the government failed to provide evidence of concrete threats warranting such a sweeping measure, and that less restrictive alternatives, such as removing harmful content or prosecuting offenders, were available. The Court concluded the shutdowns were arbitrary, disproportionate, and incompatible with international human rights standards. Consequently, the Court awarded 250,000 CFA francs (approx. 444 USD) each to ASUTIC and Gueye for violation of freedom of expression and right of access to information, and an additional 250,000 CFA francs (approx. 444  USD) to Gueye for violation of his right to work.

Facts

On June 1, 2023, the Senegalese High Court at Dakar convicted Ousmane Sonko, a Senegalese opposition leader and President of the PASTEF-Patriots party, for “immoral acts” and “corrupting youth” and was sentenced to two years imprisonment. The case against Sonko arose after Ndeye Khady Ndiaye, a female massage therapist, accused Sonko of rape and death threats. Sonko denied the allegations and argued that the case was aimed at blocking his presidential ambitions. While handing down its decision on this case, the Criminal Section reclassified the charge of rape to that of corruption of a minor, and sentenced Sonko in absentia to two years’ imprisonment and a fine of 20 million CFA francs in damages. The Court decision led to public demonstrations all around Dakar by the party members of Sonko and other people. The said demonstrations took the shape of riots between the two political groups.  

On June 1, 2023, the Senegalese government imposed a complete internet and social media shutdown, and it was confirmed by the Minister of the Interior and Public Security during a press conference. The Minister stated that the shutdown was necessary to restrict “hateful and subversive messages” being spread on social media, which could lead to violence.

On June 4, 2023, the Minister for Communication, Telecommunications, and the Digital Economy announced a temporary suspension of mobile data services. After 6 days, i.e., on June 6, 2023, the Minister for Communication, Telecommunications, and the Digital Economy announced the restoration of internet services. However, on July 31, 2023, there was yet another internet shutdown and suspension of social media platforms, including TikTok, concerning the arrest of Sonko

ASUTIC (l’Association des Utilisateurs des Technologies de l’Information et de la Communication), a Senegalese organisation working on the digital rights filed a petition before the Community Court of Justice of the Economic Community of West African States (ECOWAS) challenging the above internet shutdown. The said constitutional challenge was joined by Ndiaga Gueye, an IT consultant and the President of ASUTIC.

Decision Overview

Justice Sengu M. Koroma, Presiding Judge of the Community Court of Justice of the Economic Community of West African States (ECOWAS), delivered the judgment of the Court comprising himself, Justice Dupe Atoki, and Justice Edward Amoako Asante. The central issue before the Court was whether Senegal violated freedom of expression, access to information, freedom of assembly, and the right to work by ordering internet and social media shutdowns.

ASUTIC submitted that the Senegalese government violated fundamental rights protected under Article 9, 11, and 15 of the African Charter on Human and Peoples’ Rights (ACHPR), Article 19 and 21 of the International Covenant on Civil and Political Rights (ICCPR), Article 6 and 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). It contended that the internet and social media shutdowns imposed by the government violated their freedom of expression, access to information, freedom of assembly, and right to work. ASUTIC and Gueye submitted that due to the internet shutdown, they “were unable to communicate either socially or professionally or share their opinions and viewpoints”. [para. 39] They argued that the internet shutdown was imposed without any legal justification and was disproportionate and unnecessary.

On the other side, Senegal urged that it did not violate ASUTIC and Gueye’s freedom of expression, access to information, freedom of assembly, and right to work. They argued that freedom of expression is not an absolute right and is subject to restrictions, including “national security, public order, and public health or morals”. [para. 42] It submitted that the internet shutdown was consistent with ACHPR, ICCPR, and the domestic legal framework, including the Constitution of Senegal and the Electronic Communications Code, 2018. They further argued that the internet shutdown was necessary as “the country degenerated into unauthorised demonstrations, as well as looting and destruction of private and public property fuelled by social media”. [para. 43] In light of national security and the law-and-order concerns in Senegal, they found the internet shutdown necessary.

The ECOWAS admitted ASUTIC and Gueye’s freedom of expression and right to information claims. It dismissed ASUTIC’s freedom of assembly and right to work claims, but admitted Gueye’s freedom of assembly and right to work claims.

On merits, the Court analyzed whether the Internet shutdowns violated the rights to freedom of expression and access to information. While referring to its previous ruling, including Amnesty International Togo v. Togo, (2020) and Socio-economic Rights and Accountability Project (SERAP) v Nigeria, (2020), the Court noted the indispensability of freedom of expression through modern technology and reiterated that access to the internet and related services fall within the ambit of freedom of expression and the right to receive information. It noted that “unlawful or arbitrary restrictions of internet access or social media platforms would constitute violations of the rights to freedom of expression and information”. [para. 46] The Court recognized that in the modern, digital world, “access to the internet and internet-enabled services like social media platforms have human rights implications, particularly for freedom of expression and the right to information.” [para. 47] It reaffirmed that “access to the internet is to be regarded as a derivative component of the right to freedom of expression” [para. 46], and held that arbitrary shutdowns “prevented innocent individuals from lawfully exercising their freedom of expression and right to information.” [para. 63] The Court stressed that such measures are inconsistent with international human rights law.

The Court, further, examined whether the limitations imposed by Senegal were lawful or not. It held that any limitation placed on human rights must be prescribed by law, pursue a legitimate purpose, and be necessary and proportionate. The Court placed reliance on Principle 9 of the African Commission’s Declaration of Principles on Freedom of Expression and Access to Information in Africa 2019 and Konaté v Burkina Faso, (2014) to elaborate these principles. The Court noted that Principle 9(2) provides that the law “(a) is clear, precise, accessible and foreseeable; (b) is overseen by an independent body in a manner that is not arbitrary or discriminatory; and (c) effectively safeguards against abuse including through the provision of a right of appeal to independent and impartial courts.” [para. 49] The Court observed that under Konaté legitimate purposes are said to include “rights and reputation of others, national security, public order, public health, or public morality. [p. 50] While considering necessity and proportionality, the Court noted that it must consider whether the restriction is “the least restrictive means of achieving that purpose, and the benefit of imposing the limitation should outweigh its harms”. [para. 51]

The Court rejected the Senegalese government’s reliance on the Constitution of Senegal and the Orientation Law on Information Society 2008 and noted that although these laws lay down “general grounds” for restricting freedom of expression, it does not “prescribe or authorize any specific restrictive measures” including internet shutdown. [para. 54] The Court dismissed the government’s argument that Article 27 of the Electronic Communications Code of 2018 explicitly authorized internet shutdown. The Court noted that the provision “empower[ed] internet service providers (ISPs) to take reasonable measures to manage internet traffic, provided that such measures do not involve monitoring specific user content” and that it is aimed at “improving consumer experience.” [paras. 56-57] The Court found that none of the laws cited by the Senegalese government authorised them to impose internet and social media shutdowns in Senegal.

The Court referred to  the Special Rapporteur’s report published in June 2017 [A/HRC/35/22], which states that internet shutdowns “ordered pursuant to vaguely formulated laws and regulations also fail to satisfy the legality requirement.” The Court found that there was no “clear and specific legal basis” for imposing the internet shutdown. [para. 59] The Court held that although national security and public order are legitimate grounds for restricting freedom of expression, the government did not present evidence of specific harmful messages to justify the shutdowns and therefore failed to demonstrate a legitimate purpose. The Court observed that even if there were hateful messages on social media, they could have been removed by collaborating with Internet Service Providers (ISPs) and taking legal action against their authors. The Court emphasized that the “generic shutdown of the internet… could not be a necessary or a proportionate response”. [p. 63] Accordingly, the Court found a violation of Article 9 of the ACHPR and Article 19 of the ICCPR. [paras. 49–64]

Regarding the alleged violation of the right to freedom of assembly by Gueye, the Court dismissed the claim for lack of legal arguments and factual evidence.  Concerning the right to work, the Court found that the internet and social media “power critical aspects of work in virtually every modern institution or organisation” and that it is “almost indispensable” especially for content creators, podcasters, journalists, and IT professionals. [para. 74] The Court found it incorrect to suggest that merely freedom of expression is negatively impacted by internet shutdowns and emphasized that arbitrary internet shutdowns can violate other human rights as well. The Court noted the “adverse impact of the shutdown on his [Gueye’s] professional activities” and concluded that the government violated Article 15 of the ACHPR and Article 6 of the ICESCR. [para. 76]

In its conclusion, the Court held that the Republic of Senegal violated ASUTIC and Gueye’s right to freedom of expression and access to information under Article 9 of ACHPR and Article 19 of ICCPR, along with Gueye’s right to work under Article 15 of ACHPR and Article 6 of ICESCR. The Court awarded 250,000 CFA francs (approximately, 444 USD) each to ASUTIC and Gueye for violation of freedom of expression, and an additional 250,000 CFA francs (approximately, 444 USD) to Gueye for violation of his right to work. The Court ordered the Senegalese government to refrain from implementing unlawful or arbitrary restrictions on internet access.