By CIPESA Writer |
In July 2026, Mozambique’s Constitutional Council ruled that before a government can justify an internet shutdown, it must first have lawful authority to order one. The ruling signifies that before governments restrict connectivity, they must be able to show not only that the power to do so was lawfully created, but that it was exercised by a legally authorised authority.
The ruling comes against a wider pattern across the continent, where governments have used internet shutdowns to silence dissent and restrict fundamental rights.
The Constitutional Council declared 18 provisions of the Telecommunications Traffic Control Regulation (Decree No. 48/2025) unconstitutional, following a petition from the Center for Democracy and Human Rights. These provisions granted the telecommunications regulator, the National Communications Institute of Mozambique (INCM), broad powers to control telecommunications traffic, collect user data, intervene in operators’ networks using its own technology without their consent, and monitor communications on stated grounds including protecting state security and mitigating fraud.
The Council’s ruling was not about a recently imposed internet shutdown. Instead, it examined provisions of the regulation that gave the authorities powers to monitor communications, collect data, suspend telecommunications services and intervene in networks. The question was whether those powers could be created through regulation without a sufficient basis in legislation enacted by Parliament. The Council found that they could not, holding that the executive had effectively assumed the role of Parliament in defining the essential content of fundamental rights.
The Council described this as “organic unconstitutionality” and held that powers capable of restricting fundamental rights could not be created through executive regulation alone, but required parliamentary legislation that complies with constitutional and human rights protections.
| In the Constitutional Council’s words, the provisions “substituted the Government for the Assembly of the Republic’s legislature in defining the essential content of fundamental rights”, contrary to Article 178 of the Constitution. |
The Mozambique ruling also helps clarify three contentious questions emerging in shutdown litigation across the continent. What law permits the restriction, and who is authorised to order it? Which rights does it affect, including freedom of expression and access to information? And even where a legal power exists, is the restriction genuinely necessary and proportionate to the stated aim?
A Regional Pattern of Unlawful Interference
Mozambique’s ruling mirrors a broader African legal front against arbitrary internet shutdowns. Across the continent, governments have used shutdowns to restrict political opposition, communication, mobilisation, assembly, association and protest, in some cases without a sufficient legal basis.
In January 2019, the High Court of Zimbabwe ruled that the state security minister had no legal authority under the Interception of Communications Act to order an internet shutdown or issue an intercept directive to mobile network operators. The shutdown was ordered amid nationwide protests against rising fuel prices, but was later restored.
In Togo, the ECOWAS Community Court of Justice found that Togo’s three-day internet shutdown during the 2017 protests violated freedom of expression under Article 9 of the African Charter because it lacked authorisation under national law. The Court also ordered compensation to the applicants for the violation of their right to freedom of expression. The judgment affirmed that access to the internet enables people to exercise rights that are already protected, particularly freedom of expression and access to information.
In Nigeria, the court reached a similar conclusion, finding that the government’s seven-month suspension of Twitter violated freedom of expression, access to information, and media freedom. It described access to the platform as “a derivative right that is complementary to the enjoyment of the right to freedom of expression.”
The case of Association des Blogueurs de Guinée (ABLOGUI) and three others against Guinea shows that a legal basis alone is not enough. In that case, the ECOWAS Court found that restrictions on internet and social media access between October and December 2020 violated the applicants’ rights to information and freedom of expression. The case reinforces the rule that a government must show not only that a restriction is authorised by law, but also that it serves a legitimate aim and is necessary and proportionate.
In Senegal, the shutdowns imposed during the 2023 unrest violated freedom of expression and access to information for both applicants. The court also upheld Ndiaga Gueye’s individual claim that the shutdown violated his right to work as an IT consultant. The case illustrates that shutdowns can disrupt far more than speech. They can cut people off from work and other essential digital services, while disrupting journalism, education, payments and access to health information.
Strengthening Preventive Safeguards
Courts are not the only institutions shaping this debate. For years, the African Commission on Human and Peoples’ Rights (ACHPR) has set continental standards on open internet access. The Commission’s resolutions and declarations do not carry the same legal force as court judgments. Still, they provide important guidance on how African states should protect freedom of expression, access to information, and access to the internet.
Its 2019 Declaration of Principles on Freedom of Expression and Access to Information in Africa, Principle 38(2), provides that states “shall not engage in or condone any disruption of access to the internet and other digital technologies for segments of the public or an entire population.”
In March 2024, the Commission went further in Resolution 580, calling on states to ensure open and secure internet access before, during, and after elections, and to refrain from ordering shutdowns or disrupting digital communication platforms during the electoral process.
Conclusion
Despite judicial victories, the threat remains pervasive, and litigation alone is insufficient when judgments arrive years after the harm. In 2025, the #KeepItOn coalition recorded 30 shutdowns across 15 African countries.
There must be independent oversight, public transparency, and effective ways for people affected by an unlawful restriction to challenge it and seek redress. Telecommunications operators should also be protected from being forced to carry out unlawful orders. Only then can we ensure that the digital rights of millions are protected from the arbitrary exercise of power.
Mozambique’s ruling affirms that digital rights are not subject to executive whim. Governments must respect the rule of law, ensuring that restrictions on connectivity that limit fundamental rights are grounded in parliamentary legislation and subject to rigorous constitutional safeguards.
