The Independent Communications Authority of South Africa (Icasa), the country’s communications regulator, may face stiff challenges to its independence if the Icasa Amendment Bill is promulgated in its current form. This is according to a range of stakeholders in the sector.
They were reacting to a number of amendments in the Bill, published recently. These include placing the responsibility of appointing Icasa’s councillors with the communications minister, the establishment of a complaints and compliance committee and the appointment of independent inspectors to investigate complaints.
The Bill states that it seeks to “provide for a new, faster and more focused procedure for the appointment of the chairperson and other councillors of the Authority”.
It also drops the word “independent” from the name of the regulator, proposing the new name Electronic Communications Authority.
Critics say that the Bill takes the power of selecting Icasa councillors out of the hands of Parliament and places it in the hands of the executive, which could lead to less independence.
Democratic Alliance spokes-person on communication Dene Smuts said the Bill seeks to create an arm’s-length mechanism in the form of a panel of experts chosen by the minister, who will recommend candidates to the minister. “This will not do,” she said.
The Bill stipulates that an independent panel of five or more people appointed by the minister will nominate one and a half times the required candidates to the minister, from which councillors will be selected.
Freedom of Expression’s Jane Duncan said this will allow the minister to pick and choose the candidates most favourable to the government.
“While the proposed process has the semblance of credibility, in reality it will probably be bedevilled by damaging controversy over the politics of the successful candidates, who will still be considered in the public domain to be ministerial appointments,” said Duncan.
The current process for selecting Icasa councillors begins with an invitation for nominations from the public by Parliament’s communications portfolio committee. The committee is responsible for conducting interviews, short-listing candidates and making recommendations to go before the national assembly.
Once the national assembly has decided upon the candidates, the list is forwarded to the president for approval. “He just signs on the dotted line,” said Smuts.
“We will not liberate the pent-up potential of electronic communications in South Africa if they are not regulated by an independent body, which has the confidence of a sector in which the government still holds 38% of Telkom, 30% of the second network operator and 100% of the enormous SABC,” said Smuts.
Independent Democrat communications spokesperson Vincent Gore said the Constitution stipulates that the regulation of broadcasting should be an independent function. Placing it under the control of the minister would affect the functioning of the regulator. “This Bill is putting the last nail in the coffin of the independent regulator. It cannot go through in its current form,” said Gore.
With Icasa set to regulate on important issues such as number portability, unbundling the local loop, Telkom’s monopoly of the undersea SAT3 cable and allowing Internet service providers to develop their own infrastructure networks, the independence of the regulator is key.
Icasa senior communication manager Jubie Matlou said the regulator was still formulating its position on the Bill and could not comment.
The Department of Communi-cations did not respond in time to – e-mailed and faxed questions.