Icasa Amendment Bill makes Icasa a tool of government

But a deeper analysis quickly reveals other intentions — notably the department’s desire to bring Icasa directly under its control.

For many that may be a positive development. Icasa, for a while now, has operated less than efficiently. Many have been outraged by Icasa’s lack of clout or will to assist ordinary citizens, for example, by reducing absurdly high cellular interconnect fees. Icasa seemed totally at a loss.

Eventually there was an audible sigh of relief when the minister ¬intervened to force fees down.

The minister was operating in the public interest, but this may not always be the case. With the best intentions, any government will ultimately want to control broadcasting and telecommunication licensing processes to ensure that those more friendly to it get licences and that those more critical find it hard to hold on to theirs.

International best practice says that if you want a genuinely rich diversity of voices in broadcasting — and affordable telecommunications costs —you need a strong, independently funded, administratively independent regulator that operates solely in the public interest and is protected from major vested interests, whether commercial or governmental.

Originally exemplary

The ANC’s own broadcasting policy was originally exemplary in this regard. One of the key resolutions taken at the ANC’s Mayibuye Conference in the early 1990s was to promote independent regulation. This paved the way for the democratic transformation of South Africa’s apartheid-era statist broadcasting environment.\

South Africa had a flurry of new licences, new voices and new ideas.

Two new tiers of broadcasting were created practically from scratch — commercial and community. The state broadcaster became a public broadcaster. Of course there were problems and transformation didn’t reach as deep as it should have, but the government had the right to be proud of its achievements. This was an era of genuinely thriving independent broadcasting.

The government was then in line with international best practice on democratic regulation. It signed important protocols and agreements calling for independent regulation in the public interest, among them the 2001 Windhoek Charter on Broadcasting in Africa and the 2002 African Commission on Human and Peoples’ Rights. Both enshrine independent regulation.

So what has changed? For over a decade now, the department of communications has tried, bit by bit, to curb Icasa’s independence. The latest attempt is through the proposed Icasa Amendment Bill.

First, the Bill requires that the chairperson of the Icasa Council “performs any function assigned to him or her by the minister”, irrespective of whether this is in the public interest. This is somewhat mitigated by the fact that Parliament needs to be notified, but it is still a violation of the institution’s independence.

An extension of the department

Second, the Bill proposes that the minister should assign responsibilities to the chairperson and to each appointed councillor for licensing, monitoring and compliance, markets and competition, and so on. But this, too, undermines Icasa’s independence and effectively makes the authority an extension of the department.

Third, the minister “or his or her delegate”is to chair the panel to evaluate the performance of the chairperson and other Icasa councillors. Of course it is critical that Icasa councillors be evaluated — but that’s Parliament’s job. This clause allows for a member of the executive, namely the minister, to evaluate an individual councillor’s performance and this panel is effectively responsible for councillors’ tenure and, possibly, the removal of councillors and the chair.

Finally, the Bill includes a clause stating that Icasa “must implement policy and policy directions made by the minister”. Of course Icasa needs broadly to follow government policy, but for Icasa to be required to comply with all ministerial policy directives — whether the regulator considers this to be in the public interest — is not in line with the authority’s independence.

Constitutional violation

The provision violates Section 192 of the Constitution, which requires an “independent” authority to regulate broadcasting.

Ultimately, it appears that the ministry wants to ensure Icasa becomes a branch of the department, a move at odds with the Constitution, with various international instruments to which we are a party and with the principles of freedom of expression generally.

What is needed now is a fundamental overhaul of all broadcasting legislation — particularly laws dealing with the SABC and Icasa — but not in this haphazard manner. We need a review of the Broadcasting White Paper of 1998. For our broadcasting and telecommunications sector to deliver, Icasa’s independence needs to be strengthened, not undermined.

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Icasa Amendment Bill makes Icasa a tool of government