Trade unions and industry insiders have slammed the Department of Communications' (DOC) proposed Independent Communications Authority of SA (ICASA) Amendment Bill, criticising its constitutionality and threat to the authority's independence.
At first glance, it seems the DOC has positioned the Bill to include proposals to ensure that ICASA operates more efficiently. But industry has analysed and objected to proposed clauses that will effectively make ICASA an extension of the DOC, instead of an efficient independent body.
“On the passing of this amendment, the autonomy and independence of ICASA comes to an end. ICASA will have to implement any directive or instruction of the minister per Section 4 of the amendment,” explains WWW Strategy MD Steven Ambrose.
“The amendment effectively brings ICASA under control of the DOC,” he states.
The Bill was approved by Cabinet in June and opened for public comment for a 30-day period. Despite calls to extend the deadline, the Bill was closed for public comment on 25 July.
Although industry has tabled its concerns, and the Bill may be redrafted, final consideration now lies with Parliament.
Nyanda powers up
The SOS Campaign, representing a number of trade unions, including Cosatu, Fedusa and Bemawu, has tabled its concerns regarding specific clauses in the proposed Bill, which it believes will provide minister of communications Siphiwe Nyanda with significant control and power over ICASA.
“The minister of communications becomes the de facto CEO of ICASA, with the new head of ICASA being the chief operating officer, who will be purely operational, and ensure the CEO's instructions and vision are carried out effectively,” explains Ambrose.
According to SOS, in terms of the Public Finance Management Act, ICASA as a constitutional body used to report directly to Parliament through its CEO. It would now have to report through the minister and the department.
A more blatant clause states that ICASA must implement policy and policy directives issued by the minister. Also, the chairperson of the council must “perform such functions as the minister may determine, subject to prior notification being given to Parliament”.
The new Bill allows for the minister to determine what roles councillors play on the council, and the evaluation of councillors will be conducted by a panel constituted by the minister in consultation with the Parliament. The panel must be chaired by the minister or someone delegated by the minister, reads the legislation.
Lastly, the Bill calls for the Complaints and Compliance Committee members to be nominated by the minister in consultation with Parliament.
Industry is concerned about the future of ICASA's independence and argues that the proposed Bill contradicts existing law.
Against the grain
SOS argues that the ICASA Amendment Bill is totally at odds with SA's Constitution and the country's international obligations in terms of agreements such as the Windhoek Charter on Broadcasting in Africa, 2001, and the African Commission on Human and People's rights, 2002.
“Also, these amendments are out of sync with internationally recognised best practice as regards broadcasting regulation,” notes the body.
For instance, the African Commission on Human and People's Rights, when dealing with regulatory bodies for broadcasting and telecommunications, states that broadcasting and telecommunications must be regulated by a public authority, “which is independent and protected against interference, particularly of a political or economic nature”.
Further to these constitutionality concerns, SOS notes once again the critical importance of the department embarking on a substantive policy review process first before introducing new broadcasting and telecommunications legislation. It is imperative that the department revises the white paper first and then moves to the drafting of comprehensive, coherent legislation.
“This amendment once again shows the centralisation of power tendencies of the current administration. This centralisation of power can lead to inefficiencies and abuse of power, and will not be in the interests of the people of SA, or the telecommunications sector,” concludes Ambrose.
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