Nepad’s broadband protocol under fire
The grounds for the opposition were that the protocol would result in the expropriation of the east African submarine cable and would introduce state-led operators within all regulatory regimes, including in SA.
The DA voted against ratification.
DA communications spokeswoman Dene Smuts said the element of expropriation in the protocol on the policy and regulatory framework for the Nepad ICT Broadband Infrastructure for eastern and southern Africa related to its unilateral declaration that the East African Submarine System (Eassy) would be part of the Nepad network.
“The Eassy consortium is driven by Kenya, which is one of the 11 countries (out of 23) that has not signed the protocol. South African telecoms companies, including Telkom, are investors in Eassy,” she said.
Ratification of the protocol would also have direct consequences for SA’s communications regulatory regime as it provided for the creation of state-led operating entities or special purpose vehicles.
These instruments would consist of a government representative with a golden share and veto right; operators who had invested; and nonoperator entities nominated subject to the approval of an intergovernmental assembly.
The operating entities would build or lease infrastructure, buy bulk capacity and act as a wholesale provider of transport infrastructure to authorised service providers.
They would be entitled automatically to international gateway operator status, 15-year licences and exemption from turnover and licence fees.
“The protocol clearly binds each contracting party to amend their licensing and regulatory frameworks and laws to accommodate this, and where such changes are not made exempts the operating entities from the laws of the land,” Smuts said.
Two-thirds of contracting countries or the intergovernmental assembly could amend the protocol.
This would require reratification in each case.
The National Assembly’s decisions on the special purpose vehicles would automatically become annexes to the protocol.
Smuts noted that section 231 of the constitution provided that any self executing provision of an international agreement became law after ratification, unless it was inconsistent with an act of Parliament.
While the communications department had claimed it was taking the principles of SA’s Electronic Communications Act to the rest of Africa, the protocol created duties and rights by exemption which if incorporated into SA’s regulatory regime would have “a destabilising effect”, Smuts said.
This destabilisation would occur just at the time that the new regime was coming into being.
In voicing her objections to the protocol, Smuts emphasised the need for the construction of terrestrial infrastructure in eastern and southern Africa.
It was also important for SA to be connected more efficiently and affordably with the world through more undersea cables.
However, Smuts did not approve of the way the communications department was dealing with Eassy.
At least three other submarine cables were planned so there would be no lack of future competition.
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