By Kate Skinner

(Mail & Guardian) 23 July 2010

The Department of Communications has tabled a new piece of legislation for comment – the ICASA Amendment Bill. On first reading it appears that its purpose is to increase the efficiency and effectiveness of ICASA (Independent Communications Authority of South Africa), a positive development. However a deeper analysis quickly reveals other Departmental intentions – notably the latter’s desire to bring ICASA directly under its control.

For many actually that may be a positive development. ICASA, for a while now, has operated less then efficiently. Many have been outraged by ICASA’s lack of clout and will to assist ordinary citizens, for example, to reduce absurdly high cellular inter-connect fees. ICASA seemed totally at a loss – and finally there was an audible sigh of relief when the Minister intervened to begin to force these fees down.

However, the problem is that this is an instance where the Minister was operating in the public interest. This may not always be the case. With the best intentions in the world any government of the day will ultimately want to control broadcasting and telecommunication licensing processes in their countries and ensure that those closer to government, more friendly and less critical will get licenses and that those more critical will find it more difficult to hold onto theirs.

International best practice therefore dictates that if you want a genuinely rich diversity of voices in broadcasting – and affordable telecommunication costs – then you need to have a strong independently funded, administratively independent regulator that operates solely in the public interest – and is protected from major vested interests be they commercial or state.

The ANC’s own broadcasting policy was certainly originally exemplary in this regard. One of the key resolutions taken at the ANC’s Mayibuye Conference in the early 1990s was to promote independent regulation. This paved the way for the democratic transformation of South Africa’s apartheid era, statist broadcasting environment.

South Africa had a flurry of new licenses, new voices and new ideas. Two new tiers of broadcasting were created practically from scratch – the commercial broadcasting and new community broadcasting tiers. The state broadcaster became a public broadcaster. Of course there were problems and setbacks and transformation didn’t reach as deep as it should have but certainly government had the right to stand proud as regards its achievements. This was an era of genuinely thriving, independent broadcasting.

Also, at that point government was certainly in line with international best practice as regards democratic regulation. Further, our government continued to sign important protocols and international agreements calling for independent regulation in the public interest. Government for instance signed the 2001 Windhoek Charter on Broadcasting in Africa and the 2002 African Commission on Human and People’s Rights both enshrining independent regulation.

So what has changed? For over a decade now the Department of Communications has continually tried to incrementally curb ICASA’s independence. The latest attempt is through the Proposed ICASA Amendment Bill.

Firstly, the Bill requires that the chairperson of the ICASA Council be required to “perform any function assigned to him or her by the Minister”, irrespective of whether or not this is in the public interest. Now although this is somewhat mitigated by the fact that Parliament needs to be notified – it is still a violation of the institution’s independence.

Secondly, the Bill proposes that the Minister should assign responsibilities to the Chairperson and to each appointed councillor for licensing, monitoring and compliance; markets and competition etc. But this too undermines ICASA’s independence and effectively creates a situation where the Authority operates as an extension of the Department.

Thirdly, the Minister “or his or her delegate” is to chair the panel to evaluate the performance of the Chairperson and other ICASA Councillors. Of course it is critical that ICASA councillors are evaluated – but by Parliament. This clause allows for a member of the executive, namely the Minister to evaluate individual councillors’ performances – and this panel is effectively responsible for councillors’ tenure and, possibly, removal of Councillors and the Chair.

Finally, the Bill includes a clause that states that ICASA “must implement policy and policy directions made by the Minister”. Now of course ICASA needs to broadly follow government policy but for ICASA to be required to comply with all Ministerial policy directives whether or not the latter considers this to be in the public interest is not in line with the Authority’s independence. The provision violates section 192 of the Constitution which requires an “independent” authority to regulate broadcasting.

Ultimately it appears that the Ministry of Communications is intent on ensuring that ICASA becomes effectively a branch of the Department, a move that is at odds with the Constitution, various international instruments that we are a party, and with freedom of expression principles generally.

So what is needed now is a fundamental overhaul of all broadcasting legislation – particularly dealing with the SABC and ICASA – but not in this haphazard manner. We need a review of the Broadcasting White Paper, 1998 and from their new legislation. Ultimately, for our broadcasting and telecommunications sector to deliver, ICASA’s independence needs to be strengthened – not undermined.

Kate Skinner is the campaign co-ordinator of the SOS – Support Public Broadcasting campaign