Rightly independent
On the first two occasions the bills were changed at the last minute before being signed into law, removing the contentious elements. With the Icasa Amendment Bill, which has been the subject of intense debate in recent months, it got all the way to President Thabo Mbeki before being rejected.
Mbeki’s concerns about the bill revolved around its constitutionality. The issue of whether Icasa is protected by the constitution from interference by government has been at the heart of the debate between the communications ministry, opposition parties and industry.
The bill gives the minister far broader powers over Icasa than is currently the case, allowing the minister (rather than Parliament) to appoint a panel who could hire and fire councillors. Further, it allows the minister to conduct performance management reviews of councillors, so government would have a direct hand in deciding whether those councillors were performing.
This is eerily similar to the approach towards the judiciary. The International Bar Association criticised the proposed reform of the SA legal system this weekend, saying it would give the justice minister too much control over the judiciary. Government often has rational reasons for wishing to increase control over independent bodies. In the case of the Icasa Bill, for example, the communications ministry argues that the new provisions will greatly simplify the appointment of councillors.
That may be so, but the concept sets a dangerous precedent. And the bill could not have come at a worse time. Both the telecommunications and the broadcasting sectors, which Icasa oversees, are on the verge of unprecedented change. A more liberalised regime is on the cards for both, with the telecoms market in particular likely to see far greater competition than it has to date.
This comes in the context of government’s new growth strategy, Asgi-SA, which seeks to grow the economy 6% by 2010. The country’s high telecommunications prices — the result of Telkom’s monopoly over fixed lines — have been identified as a key barrier to economic growth. Competition, as well as breaking Telkom’s monopoly over infrastructure, is seen as key to helping SA achieve its economic growth goals.
But this is going to take time. Telkom had a legislated monopoly for five years and a de facto monopoly for another four because government failed to license a second national phone operator in 2002, as promised. Telkom has used this time well, expanding and modernising its networks as well as tying up as many customers as possible in long-term contracts. In the cellular market, Vodacom and MTN, the first two operators licensed, remain the largest players by far.
It takes time for a market that has dominant players to become competitive, particularly where new entrants have to depend on the incumbents for infrastructure. It is during this period that a strong, well funded and independent regulator is most needed. A light regulatory touch is required in a fully liberalised, highly competitive industry in order to allow the market to work. But in a newly liberalised market that continues to have dominant players both in the cellular and fixed line markets, clear guidelines are needed.
Mbeki was right to reject the bill. He should do the same with the proposed judicial reforms if they remain unchanged. Independent bodies must remain just that.
Inet-Bridge
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