President Thabo Mbeki has bounced the Icasa Amendment Bill back to Parliament, striking a blow in support of the independence of South Africa’s telecommunications regulator.
The Bill, which was forwarded for Mbeki’s signature in December last year, was the subject of heated debate after amendments that stakeholders accused of undermining the regulator’s independence were passed by the National Council of Provinces (NCOP).
Critics argued that the Bill would take the power of selecting Icasa councillors out of the hands of Parliament and place it in the hands of Minister of Communications Ivy Matsepe-Casaburri, which is unconstitutional.
At the time, it was believed the Department of Communications had pressurised the NCOP. Matsepe-Casaburri is a proponent of greater government control of Icasa; Mbeki’s decision will be a blow to the controversial draft law she sponsored.
One of the imperatives of Mbeki’s final term is to bring down the cost of telecommunications, something Matsepe-Casaburri has been unable to do in her seven years in office.
Mbeki has also promulgated the Electronic Communications Act, but the commencement date has not been set because of its reliance on the Icasa Amendment Bill.
The Electronic Communications Act (previously the Convergence Bill) aims to govern the convergence of all types of communication on one digital network comprising voice, data, Internet and other communication technology platforms.
The Electronic Communications Act refers to the complaints and compliance committee throughout, but this committee is set up under the Icasa Amendment Bill.
Presidential spokesperson Mukoni Ratshitanga confirmed that Mbeki had sent the Bill back to Parliament, but refused to comment further.
Justine White, a lawyer at Mu-kwevho Mkabela Adekeye Inc who has followed the process closely, said this move sends a strong message to the Department of Communications and the NCOP.
“I think it is very important that the president takes a step like this now, rather than have to waste government time and money defending an unconstitutional law in the Constitutional Court,” said White.
Sources privy to the process confirmed that Mbeki had reservations about the constitutionality of the Bill.
Democratic Alliance spokesperson on communication, Dene Smuts, said Mbeki had shown that he realises how important the communications sector is to South Africa’s economy, and that sending the Bill back made a lot of sense.
“This is an excellent development,” said Smuts. “The Bill would have affected the independence of the regulator, which would have impacted on the success of the Electronic Communications Act.”
Smuts said the move by Mbeki gives the committee an opportunity to rework the Bill without it having to go back to the NCOP.
“I am hoping that, with the president taking this step, the Department of Communications is more circumspect about bringing Bills to the portfolio committee that are unconstitutional,” said White.
Smuts said she would be happy if the compromise negotiated in the committee was reverted to. “The whole job can be done in a couple of hours, in one meeting,” said Smuts.
But critics have raised the issue that Parliament is set to resume on May 10, which leaves little time to resolve issues surrounding the Bill before the terms of three Icasa councillors expire on June 30.
Icasa chairperson Paris Mashile confirmed that the Bill had been returned to Parliament, but refused to comment on the fact.
“Things are out of our hands and now it is in the hands of Parliament and the executive,” said Mashile.
The most controversial aspect of the Bill was the changes to the process of appointing Icasa councillors. The current process begins with an invitation from the portfolio committee for nominations. The committee then interviews and shortlists candidates for the National Assembly. Once the National Assembly has finalised its candidates, the list is forwarded to Mbeki to sign.
The Bill proposed a new process where an independent panel of five or more appointed by the communications minister would nominate one and a half the number of candidates required, from which the minister would select the councillors.
Critics argued that the Bill would create a mechanism for the minister to select candidates that would lead to controversy over the politics of successful candidates, who would be viewed by the public as ministerial appointments.
With Icasa set to regulate on important issues such as number portability, unbundling the local loop, Telkom’s monopoly of the SAT3 undersea cable and allowing Internet service providers to develop their own networks, the independence of the regulator is key.