ICASA INDEPENDENCE UNDERMINED BY NEW ICASA AMENDMENT BILL
5 JULY 2010
The SOS Campaign representing a number of trade unions (including Cosatu, Fedusa and Bemawu), a host of NGOs (including Media Monitoring Africa, the Freedom of Expression Institute and Misa-SA), CBOs (including the Freedom of Expression Network), industry related bodies, academics and freedom of expression activists notes the vigour and commitment of the Department of Communications to find solutions to regulatory problems in the communications sector. However, SOS notes that - after a preliminary examination of the ICASA Amendment Bill - there are a number of problems in terms of its constitutionality. Further, there are a number of important process issues that are of major concern.
In terms of Constitutionality issues the Coalition notes that although the Bill includes proposals to ensure ICASA operates more efficiently which certainly should be welcomed, the Bill also includes a number of new clauses that could be constitutionally challenged. These clauses in particular relate to a set of proposed new powers for the Minister of Communications. These new powers include:
- Removing the position of CEO of ICASA as accounting officer of the Authority and creating a new Chief Operating Officer (COO) position. In terms of the Public Finance Management Act, ICASA as a constitutional body used to report directly to Parliament through its CEO. It will now have to report through the Minister and Department.
- ICASA must implement policy and policy directives issued by the Minister.
- The Chairperson of Council must "perform such functions as the Minister may determine, subject to prior notification being given to Parliament".
- The Minister will determine what roles councillors play on Council.
- The evaluation of councillors will be conducted by a panel constituted by the Minister in consultation with Parliament. The panel must be chaired by the Minster or someone delegated by the Minister.
- The Complaints and Compliance Committee members will be nominated by the Minister in consultation with Parliament.
Potentially this creates a situation where ICASA will be encouraged to operate as an extension of the Department of Communications. But this is totally at odds with South Africa’s Constitution and the country’s international obligations in terms of agreements such as the Windhoek Charter on Broadcasting in Africa, 2001 and the African Commission on Human and People’s rights, 2002. Also, these amendments are out of sync with internationally recognised best practice as regards broadcasting regulation. For instance the African Commission on Human and People’s Rights when dealing with regulatory bodies for broadcasting and telecommunications states that broadcasting and telecommunications must be regulated by a public authority “which is independent and protected against interference, particularly of a political or economic nature”.
Further to these constitutionality concerns, SOS notes once again the critical importance of the Department embarking on a substantive policy review process first before introducing new broadcasting and telecommunications legislation. This is an argument we raised very strongly previously in our comments on the Public Service Broadcasting Bill, 2009.
We noted at that point, as we are noting once again, that the present policy in place i.e. the Broadcasting White Paper, 1998 is more than a decade out of date and riddled with gaps and contradictions. Further, in the years since it was drafted the broadcasting and telecommunications sector has experienced paradigm-shattering technological changes. It is thus imperative that the Department revise the White Paper first and then move to the drafting of comprehensive, coherent legislation – both in terms of the Public Service Broadcasting Bill and in terms of this new ICASA Amendment Bill.
Finally, SOS notes that once again the Department, despite introducing very substantive legislative amendments that shift the very nature of independent regulation and broadcasting in the country, has given stakeholders a mere 30 days to comment. The Bill was published on 25 June and the deadline for written submissions has been set for 25 July.
This time period is wholly inadequate and will in particular impact the effective participation of poorer, more marginalised civil society stakeholders. The Coalition thus urgently requests that the Department organise a number of provincial consultation sessions with stakeholders and shift the deadline for comment to the very earliest the end of August 2010 to ensure substantive, meaningful inputs.
Also, SOS once again requests, in terms of the Public Service Broadcasting Bill that the Department of Communications releases its research and motivations. This lack of information is severely hampering all stakeholders’ ability to meaningfully comment.
For more information please contact:
Kate Skinner – SOS Coordinator - 082-926-6404
William Bird – Executive Director Media Monitoring Africa – 082-887-1370
Patrick Craven – Spokesperson for Cosatu – 082-821-7456
Matankana Mothapo – Spokesperson Communications Workers Union – 082-759-0900