ANC proposals adopted in ICASA law

By Paul Vecchiatto, ITWeb Cape Town correspondent

Cape Town, 24 May 2006

Parliament passed changes to the ICASA Amendment Bill yesterday, with the ruling African National Congress (ANC) members voting overwhelmingly in favour, while opposition parties abstained because of continuing constitutional concerns.

The Bill, which will replace the current Act that governs the telecommunications, broadcasting and postal regulator, the Independent Communications Authority of SA (ICASA), has been dogged by controversy for almost a year.

In a letter sent to Parliament three weeks ago, president Thabo Mbeki`s office said sections seven, nine and 11 of the Bill were unconstitutional, as they undermined the independence of the regulator, especially in the broadcasting arena, which is protected by the Constitution. It also said it gave too much power to the minister of communications to approve councillors and to force them to accept a performance management system.

Yesterday, ANC members proposed, and then the Parliamentary Portfolio Committee on Communications voted on the proposals that the minister becomes the appointing authority, with the National Assembly providing her with a list one-and-a-half times longer than needed of suitable candidates. The National Assembly would then approve the minister`s choices.

"Parliament would still have oversight and final approval of the councillors," ANC MP Reuben Mohlaoga, the proponent, said.

Also in the changes was that the minister must, in consultation with the National Assembly, institute a performance management system for the councillors, and that a councillor can be removed by the minister on request of the National Assembly.

The controversial "independent panel" that would be appointed by the minister of communications to select the councillors has been dropped entirely. Rather, the entire Portfolio Committee on Communications would sit in on the hearings. However, the committee can call in experts to help with the selection if necessary.

Looking forward

Deputy minister of communications Roy Padayachie says he is happy the issue has finally been resolved.

"Now we can look forward to the implementation of the Electronic Communications Act at around June," he adds.

Implementation of the Electronic Communications Act, formerly the Convergence Bill, has been delayed because of the problems with the ICASA Amendment Bill.

Lyndall Shope-Mafole, department of communications director-general, says while the issues around ICASA and the independence of other statutory bodies may be part of a broader constitutional debate, there is a sense of urgency to get the communication regulator`s house in order.

"There is an urgent requirement in the ICT sector to get the regulator working," she says.

Dene Smuts, Democratic Alliance MP, says: "At least the process will still be driven by the National Assembly as the president said it should be. The problem is that the minister still has too much discretion and that means a conflict of interest as she is government`s shareholder manager for a number of very large state-owned enterprises such as Telkom and Sentech."

Suzanne Vos, MP for the Inkatha Freedom Party, objected to all the ANC proposals and says: "This has serious implications for undermining the independence of broadcasting in SA."

Vincent Gore, MP for the Independent Democrats, says he is disappointed by the outcome as it has serious implications for the political control of the telecommunications network and broadcasting.

The ICASA Amendment Bill will be sent to the National Assembly for a debate at a date yet to be set.

In terms of the rules of Parliament, if the president continues to find the proposed law problematic, he then has to submit it to the Constitutional Court for its consideration. If that court finds it meets the requirement of the Constitution, then the president has to sign it into law. However, if the court finds the law unconstitutional, then the entire Bill is withdrawn and the process starts from the beginning.