President Thabo Mbeki was hailed as the ”good guy” last week for sending a controversial law back to Parliament. But credit shouldn’t go to him as much as to the system of South African democracy.
Mbeki’s decision was made in the light of many appeals that he should not sign a Bill that seemed to be unconstitutional. Indeed, it would have been embarrassing for him to approve a law only to find it declared ultra vires.
What appeared unconstitutional was the way the Bill gave the government control over the Independent Communications Authority of South Africa (Icasa). It is this regulatory body that sets rules and chooses the players in broadcasting and telecoms, and which, according to the Constitution, must be independent.
The current spat is about who will choose Icasa’s decision-making council. In just more than eight weeks, five appointments need to be made to what will then be a nine-member body.
To date, the state of democratic play in this saga shows business, civil society and political institutions doing well. From the moment that the government first introduced the Bill, at least 15 business and advocacy bodies mobilised against the proposed appointments process.
In the National Assembly, MPs in the portfolio committee on communications listened to the submissions, deliberated and debated. In the end they agreed on a revised formula for appointing councillors.
Rewritten, the Bill then went to the National Council of Provinces (NCOP), where further changes were recommended.
After that, the draft law returned to the National Assembly, which accepted some of the NCOP’s proposals. Finally, the Bill arrived at the Presidency. Appeals for it to not be signed poured in, and the legislation is now back in Parliament.
If all this ain’t vibrant democracy at work, I’m not sure what is.
The substance of argument over how Icasa councillors should be chosen went like this:
A. Under the existing system, Parliament interviews aspirant Icasa councillors and recommends names to the president. He either confirms them or demands different nominations. In sum, this is a case of Parliament –> Presidency –> Icasa.
B. September 2005: The government’s initial Bill says the minister of communications will convene a panel of industry-based experts. They submit a shortlist of names from which she chooses the councillors. Parliament is out of the picture. It is Minister –> Panel –> Minister –> Icasa.
C. October 2005: National Assembly amends the Bill so that Parliament (not the government) sets up the expert panel that supplies the names to the minister — whose choices then come back to Parliament for a decision. This is Parliament –> Panel –> Minister –> Parliament –> Icasa.
D. November 2005: The NCOP proposes reversion to B above; that is, Minister –> Panel –> Minister –> Icasa.
E. December 2005: The National Assembly adopts the final Bill. This version accepts the NCOP point of reinstating the minister as appointing the expert panel to put forward prospective names. But retained in the law is a role for Parliament in approving the subsequent ministerial choices (though with lesser powers than first envisaged in C above).
What the Presidency thus received — and rejected — was a law with the following sequence: Minister –> Panel –> Minister –> Parliament (weak) –> Icasa.
At the heart of all this is the complex issue of Icasa’s independence.
As the government is quick to point out, the regulator is not actually listed with the Constitution’s other ”Chapter Nine” state institutions (like the Independent Electoral Commission) that are required to be accountable only to the National Assembly.
This lesser status for Icasa has seen the communications ministry argue, in effect, that the regulator thus falls under the executive rather than the legislature. By implication, Parliament should stay out of Icasa.
What irks the ministry has been that the existing system distributes power. Although the executive — in the person of the president — has final say over appointments, this is curtailed by Parliament’s multiparty committee providing the names.
This background explains the initial model entailing just minister and expert panel. In rejecting this, the portfolio committee retained the hybrid with roles for both legislature and executive (see C above). The only difference to the status quo was in replacing the president with the minister, and in inserting the expert panel into the process.
That mixed model might well make a comeback now that Mbeki has rejected the subsequent proposal of a Minister –> Panel –> Weak Parliament –> Icasa system. This time around, the revised law does not have to go through the NCOP.
The benefit of the portfolio committee’s proposal of Parliament –> Panel –> Minister –> Parliament –> Icasa is its procedural recognition that the regulator is not an ordinary agency of the executive.
Indeed, Icasa’s democratic role requires its council to be autonomous of the government’s political interests. Else, for example, the body could never be a credible enforcer of impartial electoral coverage by broadcasters.
Furthermore, the regulator needs to be able to go against the interests of the three key state-linked companies in its sector, namely Telkom, the South African Broadcasting Corporation and Sentech. For the council to be under government control would create a clear conflict of interests.
It is for these reasons that most business and civil society groups want to see Parliament remaining as a significant power in Icasa appointments, rather than concede this terrain exclusively to the executive.
These are the issues that the National Assembly will now be reconsidering.
It may be that ultimate result will still reduce the independence of Icasa. In other words, we could get an anti-democratic outcome from a democratic process. But we should at least celebrate that process.