The importance of an independent regulator for the electronic communications sector cannot be overstated. Independence is a necessary although not a sufficient characteristic of an effective regulator.
An independent regulator is one that will make decisions that are impartial and fair. Independence involves independence from both industry and government. It does not mean that government does not make policy, the boundaries within which the regulator must make its decisions. It does not mean that industry cannot make its voice heard by the regulator. But it does mean that decisions made within the boundaries of policy must be made free from government interference, and that decisions should not be unduly influenced by the loudest or most well connected industry voice. It is up to the regulator to hear all voices and even take those that are often silent (such as consumers) into account.
At the same time a proper balance between independence and accountability must be reached. The history of ICASA and the role of the Government over the past 15 years indicate a number of major deficiencies in this regard. Independent regulators operate not only under policy boundaries, but also under the authority of enabling legislation that can be amended by Parliament, on the basis of budgets that must be approved annually, under the leadership of councillors who must be appointed periodically, and under judicial review.
Current enabling legislation in South Africa deals with a number of issues, including the processes for budgeting and the appointment and removal of councillors. These amendments to this enabling legislation are suggested to help establish a better and more appropriate balance between ICASA’s independence and accountability.
- A change in the process for appointing ICASA’s Councillors, reinstating an earlier procedure in which they are appointed by the President, not the Minister of Communications, on the advice of the National Assembly
- Introduction of conditions, but not a prohibition, on the movement of councillors and staff between ICASA and the industry
- Making ICASA accountable directly to the National Assembly, not the Minister, including in respect of remuneration, performance management, and budgets
- Prohibiting the Minister from making policy directions to ICASA including recommendations that pertain to, or affect the licensing of any entity, and removing the Minister’s ability to decide whether additional licences will be awarded
- Allowing ICASA freedom in appointing foreign experts to help in the performance of its functions without having to seek approval from the Minister
- Limiting the ability of the Minister to intervene in radio frequency spectrum migration only if the spectrum migration involves the “security services”, but not in respect of all “governmental entities or organisations”.
ICASA independence – discussion