Debates rage over Icasa bill
The ministry of communications believes it is not. The opposition Democratic Alliance (DA) thinks otherwise and has warned it may take legal action over a new amendment bill.
DA MP Dene Smuts says the Icasa Amendment Bill, which is due to be signed into law by President Thabo Mbeki, is unconstitutional as it gives government a measure of control over the broadcasting and telecommunications regulator to which she believes it is not entitled.
Deputy communications minister Roy Padayachie, on the other hand, says Icasa’s independence is not enshrined in the constitution. He says Smuts is "distorting and misunderstanding" chapter nine of the constitution, which deals with state institutions that protect constitutional democracy.
"Because no-one takes it up seriously with her it gets reproduced in the public domain," Padayachie says.
The furore over the amendment bill erupted late last year when the national council of provinces reinstated a clause in the bill that would take away parliament’s role in the appointment and dismissal of councillors and hand it to a new panel whose members would be handpicked by government. The DA has slammed the move, saying it undermines the authority’s independence.
But Padayachie defends the change to the law. He says the process of appointing and dismissing Icasa councillors has been greatly simplified.
For one thing, it removes the president’s role in the appointment of councillors. "In the old process, the parliamentary portfolio committee [on communications] had the responsibility of inviting applications, selecting candidates and then recommending appointments to the minister, which then went to the president. The president got involved in confirming appointments of people [but] there was no need for him to be involved."
He also says the process was flawed. The selection of candidates often degenerated into political horse-trading, which resulted in the appointment of people who were not up to scratch. "It was not a process that ensured you got the most professionally competent candidates," he says.
Smuts disputes this. "It’s only since the ANC started driving through its majority choices that we have had weak appointments [to the Icasa council]," she says.
Because of the concerns raised by the DA, Padayachie says, he sought legal advice. He was told that the amendment bill is not unconstitutional.
He says section 181 of the constitution specifically lists the institutions that are independent of state interference. Neither Icasa nor its predecessor organisation, the Independent Broadcasting Authority, is listed.
"Later on in chapter nine, broadcasting is brought in, but it merely says the broadcasting authority’s powers will be determined by its own legislation," he says. "Dene extrapolates the argument and starts applying it to broadcasting. But the constitution is very clear. If it was intended that this class of organisation should be treated as others, why did the legislature not specify that? A proper reading of the constitution [shows] there are two classes of independence and therefore two classes of institution."
Smuts dismisses Padayachie’s assertion. She says that even though Icasa isn’t specifically listed in section 181, that does not mean it is not classified as an independent body under chapter nine. "Icasa has its own clause in chapter nine which says there shall be an independent authority to regulate broadcasting," she says. "The regulator for broadcasting sits in chapter nine. It’s a non argument. I simply do not accept the argument . . . that Icasa enjoys a lesser status than other chapter nine bodies. "
Smuts insists that as a chapter nine institution, Icasa must be overseen by the national assembly , and that means overseeing the hiring and firing of councillors. "[Communications minister Ivy Matsepe-Casaburri] is hell-bent on controlling the selection process," Smuts says. She expects the legislation will be challenged in the courts.
The terms of three Icasa councillors – Lumko Mtimde, Nadia Bulbulia and Mamodupi Mohlala – end in June. This could pave the way for a legal showdown, she says. She doesn’t rule out the possibility of a legal challenge by the DA. "I don’t make idle threats," she says. She intimates, though, that she’d prefer companies in the sector to challenge the amended law.
"I have thought long and hard about petitioning the president to send the bill back to parliament so that the national assembly could restore it to our compromise," Smuts says. "I decided not to petition him because I can’t see that bearing fruit. Government is tabling the 14th constitutional amendment bill, which will take away the power of the courts to review laws that are unconstitutional. [It will] stop the courts from reviewing new laws for constitutionality."
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