/ 15 July 2010

A stronger, not weaker, Icasa is needed to sort out the SABC

Much of the controversy surrounding the Public Service Broadcasting Bill has focused on the proposed tax and the role of the minister of communications. Less attention has focused on the implications of the Bill for the regulator, the Independent Communications Authority of South Africa (Icasa).

In its current form the Bill would see Icasa’s independence and its role in relation to the SABC undermined. The key question is whether this would be such a bad thing, given Icasa’s failure to act over the crises at the SABC.

The answer, in our view, is that it is worth protecting; indeed, it is absolutely fundamental that Icasa’s role as an independent regulator is strengthened in policy and action. Why? Because Icasa is a Chapter 9 institution and has this special status precisely because of the importance of having an independent body regulate broadcasting.

Critical to democracy and media freedom, Icasa has been established to “regulate broadcasting in the public interest” (Icasa Act 2000) and, while ministers may well seek to operate in a similar manner, ultimately their agendas are determined by the government of the day and they may not always operate in the public interest.

Icasa currently has the potential to regulate the SABC effectively, including the mandate to “protect the integrity and viability of the SABC” (Electronic Communications Act 2005).

But if the Bill goes forward it will see these powers being significantly watered down. A case in point is Section 36 of the Bill, which gives the minister critical roles at the SABC.

This is the case with local content. Currently Icasa is responsible for regulating, monitoring and enforcing local content quotas, but the Bill cedes these roles ultimately to the minister.

In addition the Bill bestows powers on the minister in relation to:

  • The amount of commercial programming (Section 14(3));
  • Performance management systems for the board (Charter, 3.10 (3));
  • Regulations on proper finance (Charter 3.10.3 (3)); and
  • The public complaints handling framework (Charter 4.3 (2)).

While Icasa should not necessarily have full authority over all these areas (many of which should be dealt with by Parliament), it should at least be involved in the processes.

But wait, there’s more — The minister is also empowered to direct the SABC board, including to instruct the board to take any action specified by the minister if the SABC fails to comply with any “directive given by the minister” (Section 39(1)(e)).

The implications of these powers would undermine the independence and effectiveness of the SABC board. In addition, the ability to intervene in matters freely, without any independent body checking whether the public interest is being served and protected, is also dangerous.

The Bill also creates confusion about the roles of Icasa, the minister and Parliament. Ordinarily, the Department of Communications and Parliament are required to be policy-makers. Parliament is also there to hold the SABC board to account and to ensure transparent, effective governance of the SABC.

Icasa is there to regulate these policies and also to ensure, through effective monitoring, that the SABC fulfils its public service mandate.

Section 38 (3) of the Bill says: “Excluding the authority, the minister may further recommend the penalties or fines be imposed by the authority.” This clause clearly infringes Icasa’s mandate. It is required to impose fines and decide on the amount issued to offenders.

Section 38(1): “The minister may direct any of the entities specified in this Act to take any action pursuant to public service broadcasting if the entity is unable to perform its actions as prescribed in this Act.” Again this creates confusion, as the regulatory responsibility of enforcing policy should rest with Icasa.

Despite the deeply concerning elements of the Bill, it is clear, as noted by the SOS Coalition and Media Monitoring Africa (MMA), that there is a need for changes in broadcasting policy. While there are largely negative implications for Icasa in the Bill, there are some promising elements. These include greater accountability of the SABC to Icasa, with the stipulation that Icasa should hold public hearings on the SABC’s compliance with the Broadcasting Charter (Section 32(a)), and investigate public complaints and summon the SABC board to hearings regarding complaints (b).

The ministry’s efforts to introduce a new policy for broadcasting should be welcomed but this should not be done in a disjointed manner with minimal public participation. We call on the minister to institute a proper policy review, including oral submissions on the Bill, and to include a substantial focus on Icasa, which may include a full audit of the regulator.

The solution to the SABC’s crises is not to get rid of the regulator but rather to strengthen it to “act courageously in the public interest”. It should be emphasised that Icasa has not fulfilled its functions adequately. Nevertheless, an underperforming independent regulator is far better than no independent regulator.

In seeking to address the challenges faced by Icasa, the focus must be on strengthening the regulator and not on transferring powers to other organs.

Prinola Govenden and William Bird are with Media Monitoring Africa