Mercy Olatayo*
Introduction
The judgment of the ECOWAS Community Court of Justice in L’Association des Utilisateurs des Technologies de l’Information et de la Communication (ASUTIC) & Mr Ndiaga Gueye v Republic of Senegal (ECW/CCJ/APP/37/23; ECW/CCJ/JUD/29/25, 14 May 2025) represents an important moment in the regional constitutionalisation of digital rights. Delivered against the backdrop of recurring internet shutdowns across West Africa and beyond, the decision situates connectivity, not merely as a technical facility, but as a structural condition for the enjoyment of civil, political and socio-economic rights.
The case concerns two episodes of internet and mobile data disruption ordered by the Senegalese authorities in June and July 2023, ostensibly to curb the circulation of “hateful and subversive messages” during a period of intense political unrest following the conviction and subsequent arrest of opposition leader Ousmane Sonko. The Applicants, a digital rights association (ASUTIC) and its president, an IT consultant, Mr Ndiaga Gueye, alleged violations of the rights to freedom of expression, access to information, peaceful assembly and work under the African Charter on Human and Peoples’ Rights, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
In finding the shutdowns unlawful and awarding reparation, the Court did more than apply settled principles to a new factual matrix. It refined its jurisprudence on locus standi for civil society actors; reaffirmed and deepened the tripartite test of legality, legitimate aim, necessity and proportionality in the digital context; and, crucially, recognised the right to work as directly implicated by arbitrary connectivity disruptions. At the same time, the judgment leaves important questions underdeveloped, particularly regarding the theoretical elaboration of economic rights in the digital economy, the role of telecommunications operators, and the perennial problem of enforcement within the ECOWAS system.
This review offers a sustained, scholarly analysis of the decision. It proceeds by outlining the factual and procedural background; reconstructing the parties’ submissions; examining the Court’s reasoning on jurisdiction, admissibility and the merits; and evaluating its remedial strategy and jurisprudential implications. It then offers a critical appraisal, highlighting both the judgment’s doctrinal innovations and its latent limitations, before drawing broader conclusions about the emerging “digital social contract” in West Africa.
Factual and Procedural Background
The dispute arose at the meeting point of electoral politics, public order and digital communication. On 1 June 2023, following the conviction of opposition figure Ousmane Sonko, Senegal experienced widespread demonstrations, some of which escalated into public disorder. In response, the Ministry of the Interior instructed telecommunications operators to suspend mobile internet access, invoking the need to combat the dissemination of inflammatory content on social media platforms. The rationale was later reiterated at a ministerial press conference, where the shutdown was framed as an emergency response to the risk of violence.
This first phase of disruption affected mobile data, instant messaging and social media applications across the national territory. Although a partial restoration was announced on 6 June 2023 by the Minister of Communication, Telecommunications and the Digital Economy, various platforms, notably TikTok, WhatsApp and Facebook, continued to experience throttling or intermittent blocking.
A second, more targeted shutdown occurred on 31 July 2023, coinciding with the arrest of Mr Sonko and the dissolution of his party, PASTEF. This time, the authorities explicitly named certain platforms, including TikTok, as vectors of mobilisation and alleged subversion. The Applicants emphasised that the scope of the measures, although formally cast as “temporary” and “exceptional”, was effectively nationwide and that ordinary users had no practical means of circumvention.
ASUTIC and Mr Gueye instituted proceedings by application dated 11 September 2023 (filed on 21 September 2023), seeking declaratory and compensatory relief. They also sought expedition of the proceedings, stressing the ongoing risk of repeated shutdowns. The Republic of Senegal filed a statement of defence in October 2023, followed by further exchanges of pleadings. A public hearing was held in September 2024, during which oral arguments were presented, and judgment was reserved.
This procedural trajectory matters for more than its sequence of events. It shows the Applicants’ diligence and highlights how the Court’s electronic case-management system enabled the dispute to be addressed with reasonable speed, given the Court’s broader workload and limited resources. It also brings into view the structural imbalance between a civil-society applicant and a sovereign state, especially regarding access to evidence and the capacity to present or influence the factual narrative.
The Applicants’ Case
The Applicants grounded their claims in a detailed factual narrative and a multi-layered legal framework. They described the shutdowns as indiscriminate digital blockades that paralysed not only political debate but also economic activity, access to essential services and social connectivity. Their submissions emphasised the breadth of the interference: e-commerce platforms were rendered inoperative; remote education and professional communications were interrupted; emergency responses and health coordination were hampered; and family links mediated through messaging applications were abruptly severed.
Economically, the Applicants relied on impact estimates suggesting daily losses running into billions of CFA francs. They argued that the shutdowns had inflicted severe macroeconomic damage while also precipitating micro-level harms, such as contractual breaches and missed opportunities. At an individual level, Mr Gueye, as an IT consultant, detailed specific instances of lost work, failed deadlines and inability to deliver on digital projects due to the absence of connectivity.
Legally, the Applicants invoked the rights to freedom of expression and access to information (Article 9 of the African Charter; Article 19 ICCPR), freedom of assembly (Article 11 of the African Charter; Article 21 ICCPR) and the right to work (Article 15 of the African Charter; Article 6 ICESCR). They argued that the shutdowns failed each limb of the tripartite test for permissible restrictions on rights.
First, the measures were not “prescribed by law” in any meaningful sense. Although Senegalese law recognises certain public-order limitations on rights and grants regulators powers in the telecommunications field, there is no clear, specific and foreseeable statutory basis authorising a blanket suspension of internet services or entire platforms. Ministerial decrees or press statements, in their view, cannot satisfy the requirement that the law be accessible and precise enough to guide individual conduct and constrain official discretion.
Secondly, the Applicants challenged the authenticity of the State’s claimed legitimate aim. While public order and national security are, in principle, recognised grounds for restriction, the Applicants maintained that in this instance the language of “hateful and subversive messages” was deployed as a pretext to suppress dissent and manage political contestation, rather than to avert a clearly defined and imminent threat.
Thirdly, and most significantly, they contended that the shutdowns were manifestly neither necessary nor proportionate. The interference was framed as blanket and undifferentiated, affecting millions of users who had no connection to any alleged wrongdoing. Less restrictive measures, such as targeted removal of unlawful content, account-specific measures, geofenced restrictions in specific areas of unrest, or criminal prosecution of identified inciters, were available but not utilised. The measures thus failed the minimum impairment requirement and unduly sacrificed a wide constellation of rights and interests for an asserted but weakly substantiated security benefit.
On the right to work, the Applicants urged the Court to recognise that in a digitalised economy, the internet is not simply an instrument of expression but is also an indispensable infrastructure for the enjoyment of socio-economic rights. The shutdown, they argued, did not merely chill speech; it disrupted livelihoods, particularly for those whose work is structurally dependent on connectivity.
The Respondent’s Defence
The Republic of Senegal contested the claims at the levels of jurisdiction, admissibility and substance. It characterised the measures as temporary, geographically limited and necessary responses to a grave threat to public order. According to the State, intelligence information indicated that social media platforms were being used to orchestrate and escalate violence, necessitating a rapid and robust intervention to prevent further harm.
On legality, Senegal argued that existing domestic legislation, including the Electronic Communications Code and other regulatory texts, provided sufficient legal basis for the measures. The State emphasised that these instruments grant the executive broad powers to regulate communication networks in situations of emergency and public danger.
With respect to necessity and proportionality, the State placed emphasis on the limited duration of the disruptions and the availability of alternative modes of communication, such as fixed-line services and traditional media. It contended that the measures were calibrated and short-lived, rather than permanent or sweeping.
On the right to work, the State framed the Applicants’ economic losses as consequences of a broader situation of civil unrest rather than as a direct and attributable effect of state action. Any commercial disruptions were characterised as incidental to a good-faith effort to restore order, and thus not capable of giving rise to international responsibility.
Senegal also questioned ASUTIC’s standing to claim certain rights, notably the right to work and freedom of assembly, arguing that these rights are inherently personal and cannot be held by a legal person in the same way as by natural persons.
Jurisdiction and Admissibility
The Court’s approach to jurisdiction and admissibility demonstrates a careful balancing of openness to public-interest litigation with respect for the integrity of the victim requirement. Under Article 9(4) of the Court’s Protocol, it has jurisdiction to determine cases of alleged violations of human rights that occur in the territory of a Member State. The Applicants anchored their claims in the African Charter, ICCPR and ICESCR, all of which Senegal has ratified, thereby satisfying the material jurisdiction threshold.
On admissibility, the Court revisited and refined its earlier jurisprudence concerning the standing of non-governmental organisations and legal persons. It accepted that ASUTIC, by virtue of its objects and activities, could validly bring claims related to freedom of expression and access to information, rights which the Court has previously recognised as exercisable by legal persons. This reflects an understanding that associations and organisations are often the only realistic vehicles through which diffuse or structural harms, such as those occasioned by internet shutdowns, may be litigated.
However, the Court declined to extend ASUTIC’s standing to the right to work and freedom of assembly. It described these rights as closely tied to human labour and physical presence, making them unsuitable for a legal entity. This balanced approach avoids both extremes: it neither treats all rights as purely individual nor adopts an unlimited form of actio popularis. Instead, it distinguishes between rights that organisations can meaningfully hold or exercise and those that are essentially personal and cannot be transferred to corporate bodies.
For Mr Gueye, the Court had no difficulty in recognising direct victim status. He demonstrated a prima facie connection between the shutdown and specific harms to his professional activity, satisfying the requirement that the applicant be personally and directly affected. The Court also confirmed that the application was neither anonymous nor pending elsewhere, thereby fulfilling the remaining admissibility conditions.
This aspect of the judgment is important for future digital rights litigation. It both opens and disciplines access to the Court: civil-society organisations may bring claims in respect of certain rights that are structurally diffused, but they must still demonstrate a genuine link between their mandate and the rights invoked, and they cannot casually aggregate all conceivable rights under a general public-interest banner.
The Merits: Freedom of Expression and Access to Information
The Court’s merits analysis is anchored in the well-established three-part test for permissible restrictions on rights: legality, legitimate aim, and necessity and proportionality in a democratic society. What is distinctive in this case is the way the Court transposes that framework into the digital environment, with particular attention to the nature of internet shutdowns as “blunt instruments”.
On the requirement of legality, the Court scrutinised the domestic legal provisions invoked by Senegal and found them wanting. Although national law permitted certain forms of intervention in the communications sector, there was no explicit, clear and foreseeable authorisation for a blanket suspension of mobile internet or wholesale blocking of social media platforms. Generic references to public order or national security, without more, were deemed insufficient to meet the standard of legal precision required for interferences with fundamental rights.
This is an important point of principle. The Court rejected the notion that executive discretion, couched in broad statutory language, can serve as a catch-all justification for far-reaching digital restrictions. Instead, it insisted that where a State seeks to suspend or substantially curtail connectivity, the legal framework must specify the conditions, scope, procedural safeguards and oversight mechanisms governing such action. The absence of such detail renders the restriction arbitrary and fails the legality limb.
Regarding legitimate aims, the Court accepted in the abstract that the preservation of public order and security may justify certain limitations on expression and information. However, it refused to treat this as a talismanic formula. The State was required to demonstrate, on the basis of concrete evidence rather than rhetorical assertion, that the measure pursued a genuine and pressing objective. The general references to “hateful and subversive messages”, unaccompanied by specific examples, patterns or risk analyses, were insufficient to establish that the shutdown was truly directed at preventing serious harm rather than suppressing political contestation.
On necessity and proportionality, the Court’s analysis was particularly stringent. It emphasised that in the digital context, restrictions must be narrowly tailored. Measures aimed at addressing unlawful online content should ordinarily target the content or responsible actors, not disable the infrastructure used by the entire population. A nationwide shutdown that affects millions of people, the vast majority of whom have no connection to any alleged wrongdoing, is inherently likely to be excessive.
The Court stressed that Senegal had failed to demonstrate that less intrusive alternatives were considered or attempted. It cited the possibility of targeted content removal, account-specific measures, geographically limited restrictions, or judicially supervised interventions as examples of tools that might address specific security concerns while preserving the general availability of the internet. The State’s failure to engage with such measures, or to justify their inadequacy, meant that it could not meet the necessity requirement.
The cumulative effect of these findings led the Court to conclude that the shutdowns breached the Applicants’ rights to freedom of expression and access to information. In doing so, the Court reinforced the notion that access to the internet, while not necessarily a freestanding right in its own normative architecture, is a derivative yet indispensable means for the exercise of established rights. Disconnecting a population from the internet therefore amounts, in many circumstances, to a serious interference with those rights rather than mere technical regulation.
The Right to Work
One of the most significant aspects of the judgment is its treatment of the right to work. The Court accepted that, for individuals whose professional activities are dependent on digital connectivity, an arbitrary shutdown may constitute a violation of Article 15 of the African Charter and Article 6 of the ICESCR.
The Court’s reasoning rests on a relatively straightforward but powerful insight: in a technology-driven economy, the internet is a core infrastructure for work. For an IT consultant such as Mr Gueye, connectivity is not ancillary; it is the primary medium through which he communicates with clients, accesses tools, deploys code, and delivers services. When the State arbitrarily disables that infrastructure, without lawful basis and without satisfying the requirements of necessity and proportionality, it interferes with his ability to earn a livelihood.
The Court’s recognition of this connection shows that socio-economic rights are not separate from digital policy. It affirms that the right to work carries a negative obligation: the State must avoid unjustified actions that prevent individuals from engaging in lawful work. In doing so, the judgment broadens the scope of digital rights adjudication, which has often focused primarily on freedom of expression, to include the economic impact of connectivity.
At the same time, the Court’s analysis is somewhat narrow in its individualisation. It focuses primarily on the documented losses of the second Applicant, rather than fully exploring the structural implications of shutdowns for workers across sectors, including informal and precarious workers who lack the documentation and visibility that formal professionals can produce. Nonetheless, as a doctrinal foothold, the recognition that shutdowns may violate the right to work marks a significant advance.
Freedom of Assembly
In contrast to its detailed analysis of expression and work, the Court’s treatment of freedom of assembly is relatively brief. The Applicants invoked this right largely by reference to the relevant legal provisions, but did not substantiate the specific ways in which the shutdown prevented or interfered with actual or planned assemblies.
The Court held that bare citation of a right, without factual grounding or developed argument, is insufficient. It emphasised that applicants must articulate how a particular measure impeded their ability to organise, participate in or communicate about assemblies. This insistence on evidential and argumentative rigour, even in the context of broad digital restrictions, underscores that the Court will not infer violations in the abstract; each alleged breach must be supported by a minimum factual and legal foundation.
Although this outcome might appear formalistic, it plays an important role in maintaining the coherence of the Court’s jurisprudence. It prevents the transformation of every digital restriction case into an automatic omnibus of all conceivable rights violations, and encourages litigants to prepare more granular evidence of impact on distinct rights.
Remedies and Reparation
The Court awarded non-pecuniary damages in relatively modest amounts, allocating a sum to each Applicant for the violation of the rights to freedom of expression and access to information, and an additional amount to Mr Gueye for the violation of his right to work. It treated these sums as compensation for moral damage, including distress, frustration and loss of professional opportunity, rather than as restitution of quantified economic losses.
More importantly, the Court issued orders aimed at preventing recurrence. It declared the shutdowns unlawful, instructed Senegal to refrain from similar unlawful restrictions on internet access in future, and directed the State to bring its legal framework into conformity with its international obligations. The requirement that Senegal report back on measures taken within a specified period introduces an element of follow-up and monitoring, albeit one that depends heavily on political will and institutional cooperation.
The reparations scheme therefore combines symbolic and structural elements. The monetary awards are unlikely, in themselves, to have a strong deterrent effect on a state apparatus that may view shutdowns as a cheap and convenient tool for managing political crises. The real significance lies in the declaratory findings and the requirement to adjust domestic law, which can be leveraged by civil society and international actors to exert pressure for reform.
Jurisprudential Significance and Emerging Themes
The judgment sits at the confluence of several evolving debates in international and regional human-rights law.
First, it consolidates and extends a line of decisions that treat access to the internet as integral to the enjoyment of established rights. The Court applies the tripartite test with particular rigour in the digital sphere, reinforcing the growing consensus that internet shutdowns are prima facie suspect and must meet exceptionally strong justificatory standards.
Secondly, the decision strengthens the Court’s doctrine on standing and collective harms. Recognising ASUTIC’s standing for some rights while denying it for others, the Court sets out a careful model for public-interest litigation. It shows that digital rights cases, which often involve diffuse harms affecting millions, can still be heard, provided the applicant’s institutional mission and connection to the relevant rights are clearly established.
Thirdly, the recognition of the right to work as engaged by digital shutdowns positions the ECOWAS Court at the forefront of linking digital policy to socio-economic rights. This opens the door for future litigation on issues such as platform labour, gig work and the impact of algorithmic management on working conditions, all mediated through the lens of regional human-rights instruments.
Fourthly, the case subtly foregrounds the responsibilities of private actors, particularly telecommunications operators, even though it stops short of articulating a detailed doctrine of corporate accountability. The Court’s insistence on legal clarity and proportionality indirectly encourages operators to scrutinise state requests for shutdowns and to develop human-rights due-diligence frameworks.
Finally, the decision highlights, though indirectly, the structural enforcement gap in regional systems. The Court can declare violations and prescribe remedies, but it cannot directly enforce them. The judgment’s transformative impact therefore depends on how domestic courts, regulators, legislators, and civil society adopt and implement its principles.
Critical Reflections
While the judgment is normatively sound and doctrinally significant, its limitations are instructive.
The first limitation lies in the relatively modest elaboration of the right to work. The Court correctly recognises the connection between connectivity and livelihood, but does not fully engage with existing interpretative materials on the right to work in the context of technological change, nor does it explore the intersectional dimensions of shutdown harms. A more ambitious judgment might have drawn on socio-economic data and scholarship to articulate how internet shutdowns exacerbate structural inequalities, affect different categories of workers unevenly, and undermine long-term development prospects.
Secondly, the Court does not meaningfully articulate procedural innovations for dealing with state secrecy. It criticises the State’s failure to present evidence of the alleged security threats but does not suggest mechanisms, such as in camera review of classified material or the appointment of special counsel, that could reconcile genuine confidentiality concerns with the need for effective judicial scrutiny. In future cases, the absence of such mechanisms may allow states to continue invoking national security as a shield against robust review.
Thirdly, the remedial section, while not insignificant, remains cautious. The Court could have considered more detailed structural measures, such as requiring the adoption of specific safeguards in telecommunications legislation (judicial pre-authorisation, sunset clauses, transparency reporting, independent oversight bodies), or recommended engagement with multi-stakeholder processes to reform digital governance. Such measures would not only respond to the violations in the instant case but also build resilience against similar abuses across the region.
Fourthly, the judgment only lightly touches on the role of telecommunications operators. In an era where the infrastructure of communication is largely privately operated, the complicity or resistance of operators is critical. A more fully developed reasoning might have explored the extent to which operators are obliged, as a matter of regional human-rights law, to resist unlawful shutdown orders, to seek judicial clarification, or to provide transparency to users and regulators.
These observations do not detract from the judgment’s importance; rather, they suggest avenues for doctrinal development and scholarly engagement. The decision should be read as part of an evolving corpus, rather than as a finished constitutional settlement.
Conclusion
The ECOWAS Court’s decision in ASUTIC & Ndiaga Gueye v Senegal was a landmark in the regional regulation of digital power. It crystallised the principle that internet shutdowns, far from being neutral tools of technical administration, are profound interferences with core human rights and must be subjected to exacting legal scrutiny. The Court insisted on clear legal authorisation, evidenced legitimate aims, and demonstrable necessity and proportionality, significantly raising the standard that West African states must meet if they seek to restrict connectivity.
The judgment is particularly notable for integrating the right to work into the digital rights conversation, acknowledging that for many individuals, the internet is the very terrain on which livelihoods are made and lost. It thereby extends the reach of regional human-rights law into the socio-economic dimensions of digital governance.
At the same time, the decision’s full transformative potential will depend on its reception and implementation. Domestic courts and regulators must incorporate its reasoning into national jurisprudence and administrative practice; legislators must refine communications frameworks in line with its requirements; civil society must use its principles to challenge future abuses; and scholars must continue to interrogate its assumptions and omissions.
In summary, the judgment provides a sophisticated and largely convincing blueprint for balancing security concerns with the demands of a digital rights-respecting order. It affirms that in the contemporary world, to disconnect a population from the internet is not a minor policy choice but a serious act of rights limitation, one that regional courts will not tolerate absent the most compelling justification and the strictest observance of legal safeguards.
*Mercy Olatayo is a final year student of the University of Ibadan
