The Legal Question
The central issue before Mozambique’s Constitutional Council was whether provisions in Decreto n.º 48/2025—which granted the national regulator the authority to suspend telecommunications services in a “risk imminent” scenario and compelled operators to conduct continuous traffic monitoring, block communications, and hand over metadata—were constitutional.
Governing Principles
Separation of Powers – The Constitution reserves the power to regulate fundamental rights to parliamentary legislation. Protection of Fundamental Rights – The rights to privacy, freedom of expression and inviolability of communications are constitutionally protected, requiring that any limitation be clear, proportional, and subject to judicial oversight. Executive Limitations – Executive decrees may not substitute for the legislative process when they impose substantive restrictions on core rights.
The court applied these principles and held that the decree overstepped the executive’s remit by creating an “improper substitute” for parliamentary law.
Strength of Counterargument
A pro‑executive argument might assert that swift, emergency responses to security threats demand executive flexibility. However, the court found that emergency measures must still be grounded in legislation that sets clear limits and allows for judicial review; otherwise, the executive would wield unchecked power over fundamental rights.
Practical Implications
The ruling eliminates the legal basis for the regulator to order partial or total network shutdowns or to mandate continuous traffic monitoring under the invalidated provisions. Any future attempt to re‑establish these powers must go through Parliament and be framed as a statutory law with explicit safeguards, including time limits, oversight mechanisms, and judicial review.
Realistic Reform
The government may draft a new law that retains the regulator’s ability to act in genuine emergencies, but the bill must:
1. Specify precise conditions under which shutdowns are permissible, 2. Set a maximum duration for any suspension, 3. Include mandatory judicial oversight and an independent review panel, 4. Provide for operators to challenge orders.
By incorporating these safeguards, the law would meet constitutional requirements and mitigate the risk of arbitrary interference with digital rights.
Conclusion
Mozambique’s Constitutional Council has clarified that the executive cannot use decrees to impose broad restrictions on telecommunications that impinge on privacy, freedom of expression and the inviolability of communications. The decision reinforces the primacy of parliamentary lawmaking in safeguarding fundamental rights while still allowing the state to address legitimate security concerns through a balanced, legislated framework.
Authorities and sources
- Constitution of Mozambique - Decreto n.º 48/2025 - Acórdão n.º 6/CC/2026 - Deutsche Welle (DW) report, 2026‑08‑03