New bills will ‘undermine’ independence of Icasa
Broadcasters and telecoms industry fear power will shift from regulator to minister
Chantelle Benjamin, Business Day, Johannesburg, 29 July 2010
A NEW bill proposing substantial changes to how the Independent Communications Authority of SA (Icasa) functions has been criticised by industry players as an attempt by the communications minister to erode Icasa’s independence.
The Icasa Amendment Bill is the second bill — the first being the controversial Public Service Broadcasting Bill — which has prompted an outcry from the industry. It is argued that it gives too much power to the minister, Siphiwe Nyanda.
But the Department of Communications has said both bills are only in their beginning stages and their contents could be influenced by public input. The deadline for submissions on the Icasa bill was Monday, and a variety of interest groups made submissions which in effect advocate the same thing. While they believe an overhaul of Icasa is long overdue, they feel the new legislation seriously undermines Icasa’s independence and is therefore unconstitutional.
They say what is needed before either the Icasa Amendment Bill or the Public Service Broadcast Bill are formally introduced to Parliament is a comprehensive communications policy review process undertaken by the Department of Communications with the appropriate stakeholders.
On the issue of the Icasa Amendment Bill, Icasa has long been accused of being toothless and inefficient, and not without reason. The organisation has failed in many ways to satisfy its mandate which, as the Freedom of Expression Institute (FXI) puts it, is: “to balance the competing demands of promoting fair competition, protecting and serving the public interest ... and to regulate the electronic communications industry”.
To name just two examples, Icasa appeared to be at a loss as to how to protect the public from high cellular interconnection fees, leaving the minister to intervene in the end, and it has failed to probe claims that the SABC is not meeting its local content mandate. Encouraging local content in broadcasting is an important part of the SABC’s function.
The Icasa Amendment Bill, which was released with little fanfare by Gen Nyanda last month for public comment, sparked immediate concern in the broadcast and media sector.
Save Our SABC (SOS) — a coalition of bodies such as the FXI, trade unions and Media Monitoring Africa — says in its submission that it is seriously worried about threats to Icasa’s independence.
“In attempting to ensure greater efficiencies the bill brings Icasa directly under government’s wing, but Icasa needs to operate at arm’s length from government, as at times it will be required to rule against government and at times against the industry,” it says.
The SOS also says the Icasa Amendment Bill fails to strengthen Icasa’s structure or concerns that its under funded.
Guy Berger, head of the school of journalism at Rhodes University, in his personal submission, commends the bill’s attempts to clarify functions at Icasa and seeking to improve turnaround times.
But he argues it places “too much burden on the minister” in that it requires the chairman of the council “perform such other functions the minister may determine, subject to prior notification being given to the National Assembly” without defining “notification”.
He says the ability of the minister to assign tasks, such as licensing and monitoring and compliance, to individual councillors, amounts to “micromanagement” of a supposedly independent body.
He also questions giving the minister and the National Assembly the power to select members of the complaints and compliance committee, which is responsible for ensuring that broadcasters comply with legislation and regulations. This, he says, will be unconstitutional since the power to nominate the committee should be in the hands of the Icasa council.
It will also cause conflict since the complaints committee has the power to issue orders directly instead of making recommendations to the council, leaving the council relatively powerless.
The FXI said that without an independent Icasa, the SABC might be “vulnerable to political interference” as it was during apartheid.