The National Assembly voted in favour of the Nepad ICT Broadband Infrastructure Network last week. This is the penultimate step before full ratification of the agreement to create a land and sea-based fibre optic network through Africa.
The protocol has been signed by 12 of the 23 countries that were involved in the original discussions. It aims to roll out a terrestrial network stretching from SA to the Rwandan capital of Kigali, through Zimbabwe, Zambia and a number of other countries. It also intends to incorporate the East African Submarine Cable System (Eassy).
While the elected members of Parliament's National Assembly have voted, the protocol still has to go before the National Council of Provinces (NCOP), the second house, and this will only happen some time in August, as Parliament has gone into recess.
Although the National Assembly voted in favour due to the strength of the ruling African National Congress (ANC), even its own politicians seem to be wary of the international agreement.
Godfrey Oliphant (ANC), chairman of Parliament's Portfolio Committee on Communications, said, when introducing the protocol, that a post-ratification monitoring process was needed.
"There will be a post-ratification consultation with the affected parties and we are mindful of industry uncertainty being caused by this protocol," he said.
Expropriating Eassy
Dene Smuts, communications spokesperson for the official opposition, the Democratic Alliance, said in a statement the protocol "expropriates Eassy, declaring it part of the Nepad network".
She said, in terms of the South African constitution, international agreements are law to the extent that they are self-executing, yet the protocol can be amended by the contracting countries and the Inter-Government Assembly (the body envisaged that will represent the signed up states). This means the protocol would have to be ratified every time, creating unpredictability on an ongoing basis so far as the self-executing provisions go.
According to Smuts, the existing contracts are respected by the protocol, such as the construction and maintenance agreement signed by Telkom, and some of the other Eassy partners with equipment supplier Lucent Alcatel, but, at the same time, it declares Eassy as being part of the Nepad network.
Telkom signed the construction and maintenance agreement three months ago and, according to the Department of Communications, this contract was tantamount to a shareholders' agreement.
New wholesaler
Smuts went on to say the protocol also sets up a new operating entity, the special purpose vehicle (SPV), which is given a range of loosely drafted rights and will become a wholesale operator, by buying bulk capacity and selling it to international, national and regional operators.
She said the Inter-Government Assembly representative's veto vote on the SPV gives it a huge amount of power over the conduct of its business.
Earlier last week, Department of Communications director-general for international affairs and trade Keith Shongwe told the NCOP committee the rules for using the veto still had to be worked out.
"Does the DOC want to grab a wholesale role in SA?" Smuts asked in her statement. "The protocol introduces more uncertainty into our already wobbly regulatory regime."
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