WORD GAMES
The call, by DA MP Dene Smuts, comes as the political ruckus over the constitutional independence of SA’s broadcasting and telecommunications regulator, the Independent Communications Authority of SA (Icasa), boils over.
Last Friday, the communications department tabled a document to members of parliament’s constitutional review committee. But the department says the document was “speaking notes” and should not be taken as an official view. The document argues that Icasa, unlike other institutions referred to in chapter nine of the constitution, does not enjoy protection from interference by the executive arm of government.
The department says Icasa “stands in a different position” to chapter nine bodies that support constitutional democracy, such as the auditor-general and the public protector. Icasa is not specifically listed in chapter nine. Nor is the appointment process for councillors set out. The document says section 194, which deals with the appointment and removal of office bearers of chapter nine bodies, does not apply to Icasa.
The document also suggests that the department wants the word “independent” removed from Icasa’s name. “The telecom sector, which is accommodated in the Electronic Communications Act, was never intended to be independent as envisaged by the proponents of the word ‘independence’ in section 192 of the constitution.”
Section 192 states that legislation must establish an independent authority to regulate broadcasting in the public interest. No mention is made of telecoms.
The department’s document also says that responsibility for the appointment and dismissal of Icasa councillors should not rest with parliament, as it does now. Should parliament not agree to remove the word “independent” from Icasa’s name, however, the appointment of councillors “should be done by the minister with the involvement of the national assembly to cater for the independence aspect”.
The DA’s Smuts says the document is “unbelievable” in that it flies in the face of a letter the president sent to the speaker of parliament last month. In the letter, Mbeki explains his reasons for referring the Icasa Amendment Bill back to parliament for redrafting. “Whereas there may well be grounds for the amendment of the [Icasa Act], we submit that the processes related to the appointment, removal and performance management of the council should remain driven by the national assembly,” Mbeki writes.
“We are of the view that the appointment of councillors by the minister in the manner prescribed . will impact negatively on the impartiality and independence of the council, in contrast to the requirements of section 192 of the constitution.”
But communications director-general Lyndall Shope-Mafole plays down the significance of the department’s document. “They were just speaking notes,” she says. “I asked a staff member to prepare some notes. I hadn’t even read them. It’s not even a discussion document [and] it’s not a document of the department.”
Smuts disputes this claim, saying that Shope-Mafole personally tabled and distributed the document to MPs at last Friday’s meeting, and then spoke to it. “There is no doubt that this is the position of the department,” Smuts says.
The furore over the amendment bill first erupted in December 2005, when the national council of provinces (NCOP) reinstated a portion of the draft law that would have taken away parliament’s role in the appointment and dismissal of councillors and handed it to a new panel whose members would have been handpicked by government (see Technology & Communications February 17 and April 28). The NCOP reinstated the offending section after political pressure was brought to bear by the communications ministry.
Critics accused the ministry and department of bullying the NCOP into changing the bill to give the minister greater control of Icasa. Smuts accuses Matsepe-Casaburri of wanting to micro manage the telecom sector instead of allowing it to develop of its own accord. Shope-Mafole says, however, that the decision to approach the NCOP was taken by cabinet because it disagreed with a compromise version of the amendment bill that had been forged by political parties in the national assembly. It was a proxy of the minister who approached the NCOP, she says.
Smuts says Matsepe-Casaburri should resign. “What [she] did in persuading ANC MPs in the NCOP to overturn the national assembly’s work and revert to the bill she originally published already displayed contempt of parliament and the constitutional separation of powers,” Smuts says.
“Now, unbelievably, she goes against the president . by proposing to the constitutional review committee that the regulator be stripped of its independence. Chapter nine exists to create a special set of institutions which are not answerable to cabinet members. If she does not understand the import of what she is doing, she should not be in the job. If she does understand, she must be removed from the job.”
Smuts says Mbeki’s letter to parliament, on the other hand, is “as fine and forceful an expression of the presidential protection of the constitution as we could ever hope to see”. The letter, she adds, is a “resounding reproach of the minister of communications and her department”.
Shope-Mafole disagrees strongly. “When the president exercises his mind, we don’t see that as a reproach . When he does not agree with something, we don’t see that as a reproach necessarily.”
Smuts says she is confident that the department’s proposed constitutional amendments — if that’s what they are — will not be adopted. The only change that will likely be made — and it’s a proposal already serving before the constitutional review committee — is that section 192 is amended to refer to electronic communications and not just broadcasting. This, Smuts says, would firmly guarantee Icasa’s independence as a chapter nine body.
Shope-Mafole is adamant that the constitution must be amended to set out the appointment process for Icasa councillors. “The details [of what this process will look like] will come later,” she says.
The constitutional review committee was due to meet on Wednesday, after the FM went to press, to consider the various proposals before it.
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