DIGITAL RIGHTS AND INTERNATIONAL HUMAN RIGHTS LAW: LEGAL STANDARDS FOR SURVEILLANCE AND PROPORTIONALITY UNDER INTERNATIONAL AND REGIONAL LAW

ABSTRACT

This article explores the legal standards governing state surveillance in the digital age, particularly within the framework of international and African regional human rights law. The proliferation of digital technologies has enabled states to conduct surveillance with increasing sophistication and reach, raising urgent questions about the adequacy of existing legal protections for privacy and related rights. Focusing on the principles of legality, necessity, and proportionality, this article analyses how surveillance practices are regulated under the International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and Peoples’ Rights (ACHPR), and the jurisprudence of regional courts. It argues that while these frameworks provide some foundation for rights protection, there remains a significant gap between legal standards and enforcement, particularly in Africa, where oversight mechanisms are weak and strategic litigation is still evolving. The article concludes with recommendations for strengthening legal safeguards and accountability mechanisms to ensure that surveillance measures do not undermine fundamental rights.

INTRODUCTION

The exponential growth of digital technologies has transformed how individuals communicate, organize, and express themselves. However, these same tools have enabled states to deploy sophisticated surveillance regimes, often under the guise of national security or public order. Across Africa, governments have increasingly adopted digital surveillance measures, including biometric identification systems, social media monitoring, and the use of spyware, often without adequate legal safeguards or transparency. These developments have raised critical concerns about the compatibility of state surveillance with fundamental rights such as privacy, freedom of expression, and due process.

This article examines the legal standards that govern state surveillance under international and regional human rights law, with a focus on Africa. It explores the principles of legality, necessity, and proportionality as developed in international jurisprudence and assesses their application within the African human rights system. The central question addressed is whether existing legal frameworks offer sufficient safeguards against arbitrary or disproportionate surveillance practices. The article is structured as follows: first, it provides background on the right to privacy and relevant legal frameworks; second, it examines international standards on surveillance and proportionality; third, it analyses the African regional system and relevant case law; and finally, it discusses challenges and prospects for litigation and reform.

BACKGROUND

The right to privacy is a cornerstone of democratic societies and a prerequisite for the exercise of other fundamental rights. Under Article 17 of the International Covenant on Civil and Political Rights (ICCPR), “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence,” and everyone has “the right to the protection of the law against such interference.” ¹ The Universal Declaration of Human Rights (UDHR) similarly affirms the right to privacy in Article 12.²

Although the African Charter on Human and Peoples’ Rights (ACHPR) does not expressly guarantee the right to privacy, the African Commission on Human and Peoples’ Rights has interpreted Articles 9 (freedom of expression) and 10 (freedom of association) as encompassing elements of privacy protection.³ The Commission has also adopted Resolution 362 on the Right to Freedom of Information and Expression on the Internet, which urges states to respect privacy and regulate surveillance in accordance to international standards.⁴

Key concepts underpinning lawful surveillance include legality, legitimate aim, necessity, and proportionality. These principles require that any interference with privacy must be grounded in clear law, pursue a legitimate objective, be necessary in a democratic society, and be proportionate to the aim pursued. ⁵ In the digital age, these principles are especially important, given the potential for mass surveillance to intrude on private lives in unprecedented ways.

SURVEILLANCE AND THE RIGHT TO PRIVACY UNDER INTERNATIONAL LAW

International human rights bodies have elaborated detailed standards to assess the legality of surveillance. The UN Human Rights Committee, in its General Comment No. 16, emphasised that the protection of privacy must not be subject to arbitrary or unlawful interference, and that any interference must be both lawful and reasonable. ⁶ This view was reinforced by the Committee’s subsequent pronouncements, including in Toonen v. Australia, where the Committee held that surveillance measures must comply with the principles of legality, necessity and proportionality. ⁷

The UN Special Rapporteur on the right to privacy has consistently warned about the risks of unchecked surveillance, noting in a 2022 report that many states fail to comply with international standards when deploying surveillance technologies. ⁸ The report called for greater transparency, judicial oversight, and the establishment of clear legal frameworks.

While the ICCPR provides a robust basis for protecting privacy, the enforcement of these standards depends heavily on domestic incorporation and international accountability mechanisms. The European Court of Human Rights (ECtHR), although not binding on African states, offers persuasive authority on the interpretation of privacy rights. In Weber and Saravia v. Germany, the ECtHR held that surveillance regimes must be subject to clear legal frameworks and independent oversight to prevent abuse. ⁹ This jurisprudence provides a model for assessing the proportionality of surveillance measures and is increasingly referenced in other jurisdictions.

REGIONAL PERSPECTIVES: AFRICAN HUMAN RIGHTS LAW AND JURISPRUDENCE

In Africa, the protection of digital rights under the ACHPR remains underdeveloped. The African Commission has acknowledged the importance of privacy in the digital context but has yet to establish detailed jurisprudence on surveillance. The absence of an explicit right to privacy in the Charter has complicated litigation efforts, though civil society actors have creatively invoked Article 9 to challenge restrictions on digital freedoms.

The ECOWAS Community Court of Justice has emerged as a notable venue for digital rights litigation. In SERAP v. Nigeria, the Court addressed the Nigerian government’s suspension of Twitter in 2021, ruling that the ban violated the right to freedom of expression under international and regional law. ¹⁰ Although the case did not focus specifically on surveillance, it demonstrated the Court’s willingness to engage with digital rights issues and apply international standards.

Another instructive case is Lloyd Mutungamiri v. Kingdom of Lesotho, submitted to the African Commission, in which the complainant challenged state surveillance and intimidation of journalists. ¹¹ While the case remains under consideration, it illustrates the growing willingness of litigants to raise privacy-related claims under the ACHPR.

The lack of domestic data protection laws in many African states further compounds the problem. As of 2023, fewer than half of African Union member states had enacted comprehensive data protection legislation. ¹² Where such laws exist, they often lack enforcement mechanisms or are undermined by national security exemptions. These gaps weaken the capacity of courts to uphold privacy rights and limit the effectiveness of regional legal standards.

APPLYING THE PRINCIPLES OF PROPORTIONALITY AND NECESSITY

Central to the legality of surveillance is the test of proportionality. This requires that the intrusion into privacy is not only necessary for achieving a legitimate aim but is also the least intrusive means available. ¹³ In the context of surveillance, this means that blanket or indiscriminate data collection is unlikely to pass the proportionality test. Instead, surveillance measures must be narrowly tailored, time-bound, and subject to independent oversight.

The ECtHR’s jurisprudence provides a useful analytical framework. In Zakharov v. Russia, the Court held that laws authorizing bulk interception without adequate safeguards violated Article 8 of the European Convention on Human Rights. ¹⁴ Although this decision is not binding on African states, it underscores the importance of legal clarity, judicial authorization, and post-surveillance remedies.

In the African context, courts and tribunals have yet to fully develop proportionality analysis in surveillance cases. Nevertheless, the principles are present in international and regional instruments and can be invoked in strategic litigation. Civil society actors and legal practitioners should advance arguments grounded in proportionality to challenge vague or excessive surveillance laws, especially where such laws are used to suppress dissent or target activists.

DISCUSSION

The legal frameworks discussed above offer a foundation for rights-based regulation of surveillance, but enforcement remains inconsistent. In many African countries, surveillance laws are either non-existent or overly broad, granting sweeping powers to security agencies with minimal accountability. The lack of judicial oversight and the weakness of independent data protection authorities further exacerbate the problem.

Despite these challenges, there are opportunities for progress. Strategic litigation, particularly at the regional level, can serve as a catalyst for reform. The ECOWAS Court, the African Commission, and potentially the African Court on Human and Peoples’ Rights offer forums where civil society can challenge unlawful surveillance. In addition, regional instruments such as the African Union Convention on Cybersecurity and Personal Data Protection (Malabo Convention), though not yet widely ratified, provide a normative basis for advancing privacy protections.

Legal education and advocacy also have a role to play in building the capacity of courts and practitioners to engage with digital rights issues. By drawing on international jurisprudence and adapting proportionality standards to local contexts, African legal systems can begin to close the gap between legal theory and human rights protection.

CONCLUSION

This article has examined the legal standards that govern state surveillance under international and African regional human rights law, with a focus on the principles of legality, necessity, and proportionality. It has shown that while international frameworks such as the ICCPR provide robust protections for privacy, regional systems in Africa are still evolving. The absence of explicit privacy rights in the ACHPR and the weakness of domestic legal safeguards leave many individuals vulnerable to rights violations.

To address these challenges, states must enact clear and narrowly defined surveillance laws, establish independent oversight mechanisms, and ensure judicial remedies are available. Courts and regional bodies must also develop stronger jurisprudence that applies proportionality analysis to surveillance cases. By advancing these reforms, African states can uphold digital rights and ensure that surveillance practices respect the rule of law and human dignity.

REFERENCE(S):

1. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 17.
2. Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) art 12.
3. African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58.
4. African Commission on Human and Peoples’ Rights, ‘Resolution on the Right to Freedom of Information and Expression on the Internet in Africa’ (ACHPR/Res.362(LIX)2016).
5. UN Human Rights Council, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression’ (6 April 2018) UN Doc A/HRC/38/35.
6. UN Human Rights Committee, ‘General Comment No 16: The Right to Respect of Privacy’ (1988) UN Doc HRI/GEN/1/Rev.9.
7. Toonen v Australia (1994) UNHRC Comm No 488/1992, UN Doc CCPR/C/50/D/488/1992.
8. UN Special Rapporteur on the Right to Privacy, ‘Report to the Human Rights Council’ (28 February 2022) UN Doc A/HRC/49/55.
9. Weber and Saravia v Germany App no 54934/00 (ECtHR, 29 June 2006).
10. Socio-Economic Rights and Accountability Project (SERAP) v Nigeria ECW/CCJ/APP/22/20 (ECOWAS Court, 14 July 2022).
11. Lloyd Mutungamiri v Lesotho Communication 693/18 (ACHPR, pending).
12. African Union, ‘Data Protection Laws in Africa: A Review’ (2023)
13. Martin Scheinin, ‘Surveillance and Human Rights’ (2009) EUI Working Papers LAW 2009/05.
14. Zakharov v Russia App no 47143/06 (ECtHR, 4 December 2015).