More power to Nyanda

2010-07-25 14:03

Embattled Minister of Communications Siphiwe Nyanda is at the

centre of ­controversy – this time over an alleged ­attempt to centralise

control over the ­powerful broadcasting and telecommunications ­regulator, the

Independent Communications Authority of South Africa (Icasa).

Industry insiders remain divided over the Icasa Amendment Bill,

gazetted in June.

The bill has a controversial history. Amid concerns over its

constitutionality it was withdrawn by the former administration and referred

back to Parliament.

Information technology, telecoms and business insiders have long

argued for ­Icasa’s powers to be strengthened, particularly as they relate to

taking on issues of ­competition, monopolies and conflict of ­interest through

the courts.

The draft bill is intended to improve the functioning of the

regulator and Nyanda was last year described as “a breath of fresh air” at a

forum at the Joburg-based Gordon Institute for Business ­Science.

This was,

according to participants in the ­forum, ­because the new ministry had shown it

had the political will to clean up Icasa and “take on” the powerful corporations

­monopolising the sector.

But a broadcasting lobby group, the ­Support Public Broadcasting

Coalition, has ­argued that the amendments in their ­current form ascribe

wide-ranging powers to the minister to interfere with the ­workings of

Icasa.

Among the many changes proposed in the bill, the minister will play

a more direct role in the appointment and evaluation of councillors and will

preside over a newly constituted tariff advisory council.

The chairperson of the council will perform functions “such as the

minister may ­determine”.

Cosatu spokesperson Patrick Craven ­acknowledged that Icasa needed

to change how it was run as it had failed in its duty.

He said, however: “Our concern is that the bill, as it stands, will

be contradicting Chapter 9 of the ­Constitution, which makes Icasa ­independent

of government.”

Craven said that while government had every right to express an

opinion on ­issues, “it cannot absorb Icasa”.

Icasa is an influential state organ which regulates nearly every

aspect of the ­telecommunications sector, from cellphone inter-connect rates to

broadband internet. Significantly, it also regulates two of the country’s

biggest parastatals – the SABC and Telkom.

In the past, government has been ­accused of political interference

in the functioning of the regulator, ­defined in the Constitution as a state

institution which supports democracy, much like so-called Chapter 9

institutions.

For example, the regulator was tasked as far back as 2007 with a

process known as “loop unbundling” which would allow rival operators to make use

of Telkom’s ­infrastructure to offer cheaper internet.

Icasa has been slow in getting this ­process off the ground mainly,

as critics ­argue, because government stands to lose the most from this as

Telkom’s largest ­shareholder.

According to the Constitution, “No ­person or organ of state may

interfere with the functioning of these institutions”.

According to the coalition, however, this is precisely what the

draft amendments are tantamount to.

The coalition’s Kate Skinner said:

“Potentially this creates a situation where Icasa will be encouraged to operate

as an extension of the Department of ­Communications.”

If the amendments are passed into law, not only will the minister

oversee the job evaluation of every appointed Icasa ­councillor; he will also

have the role of personally assigning them portfolios.

Skinner said that if the minister ­“dictates” councillors’

functions, Icasa’s ­independence will be undermined.

By law, Icasa is obliged to take ­ministerial policy into account

on matters of policy, but it has never been an implicit requirement to implement

it.

The new bill requires that Icasa “must implement policy and policy

directions made by the minister in terms of the ­Electronic Communications Act

and Postal Services Act.”

Communications department ­spokesperson Tiyani Rikhotso said: “The

proposed amendments in question are ­currently subject to a public consultation

process.

I am therefore not in a position to comment on them until the process

has been ­exhausted.”



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