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ICASA's independence remains moot

Bonnie Tubbs
By Bonnie Tubbs, ITWeb telecoms editor.
Johannesburg, 08 Jul 2014
ICASA's ability to regulate the industry in an unbiased manner is a bedrock of an effective ICT environment.
ICASA's ability to regulate the industry in an unbiased manner is a bedrock of an effective ICT environment.

The historically precarious status of SA's communications regulator has become a bigger bone of contention, with one of the keystones of a working ICT environment - the independence of the body to carry out its mandate in an unbiased manner - on the line.

This is according to industry observers and comes after repeated calls for clarity on the Independent Communications Authority of SA's (ICASA's) role in overseeing the country's ICT sector as an independent body, as enshrined in Chapter Nine of SA's Constitution.

Democratic Alliance (DA) shadow minister of telecoms, Marian Shinn, on Monday called for president Jacob Zuma to state categorically that ICASA is a Chapter Nine institution, charged with regulating the electronic communications sector, and that its independence of government is guaranteed.

However, the state head's May move to split SA's ICT ministry in two - with ICASA now under the new state communication ministry as opposed to the telecoms arm (the Department of Telecommunications and Postal Services, or DTPS) - has raised concerns around the future of a regulator already lacking muscle.

On Friday, Faith Muthambi, minister of the new communications department (which replaces the former Government Communication and Information System), dismissed speculation that ICASA would be moved to the DTPS. The assertion has fuelled questions around the rationality of splitting functions in an increasingly converged sector.

Power grab

Last year, when concerns around ICASA's independence emerged, there were fears the then Department of Communications, under Dina Pule, was keen to seize power of the regulator as it sought to have first call on the critical issue of spectrum allocation.

Ovum analyst Richard Hurst says the latest move to uproot ICASA may be something of a precursor to the body becoming more of a government tool rather than a regulatory body, which would be "disastrous" for the sector.

"One of the cornerstones of the development of a working telecommunications and ICT environment will be the independence and even greater independence of the regulator to carry out its mandate in an even and unbiased manner."

Moot point

Independent telecoms researcher Samantha Perry says ICASA is not independent in that it has to apply to National Treasury for funding and does not have financial control. "Plus it is subjected to the whims of the minister of whichever department it falls under."

Perry says the problem of spectrum allocation delays is a case in point. "Pule intervened with ministerial directives and disrupted the process ICASA had put in place and we've seen nothing happen since, as it appears to have fallen into a jurisdictional hole.

"That ICASA falls under any ministry is problematic. That the ministers have carte blanche to interfere whenever they are getting pressure from above or industry lobbyists is problematic. The Section Nines are meant to be independent - which requires them to report to Parliament, not a ministry - and [to be] self-funding. Until that happens, [the independence of ICASA] is really a moot point."

IDC analyst Spiwe Chireka says at the end of the day, the proof will be in how entities' functions are defined - clarity on which the industry has been pushing for, but is still awaiting. Less important, she says, is which ministry's wing entities fall under.

"We were expecting two things to have happened by now [since the new ministries were announced on 25 May] - an actionable plan to be laid out and ICASA's role to be made clear. These are things we needed finalised yesterday and I hope they will be sooner rather than later, so that we can start to act on some of the critical issues the sector faces - rather than stay stuck in debate and planning."

ICASA had not commented by the time of publication. Spokesperson Paseka Maleka previously said the authority did not have a comment on the new developments in Cabinet, but noted "nothing had changed" in terms of its deliverables.

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