Articles

The constitutional fate of ICASA in a converged sector

South African Journal of Human Rights 2009
By Simon Delaney

I    Introduction
The Constitution specifically requires the independent regulation of broadcasting. Section 192 provides:

National legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society.

The Independent Communications Authority of South Africa (ICASA) is authorised to regulate inter alia the converged broadcasting and telecommunications sectors, now referred to as electronic communications, by the ICASA Act  and the ECA.

Two anomalies appear from an assessment of ICASA's constitutional mandate: firstly, s 192 refers only to broadcasting and does not include telecommunications. Therefore, while ICASA is clearly the ‘independent authority’ contemplated in s 192, its obligations to ensure fairness and a diversity of views in telecommunications are not rooted in the Constitution, but appear only in the ICASA Act. Secondly, ICASA is not listed as one of the State Institutions Supporting Constitutional Democracy (‘Chapter 9 institutions’) in s 181 (1), even though s 192 is contained in Chapter 9. If ICASA is not regarded as a Chapter 9 Institution, ss 181 (2) - (5) regarding independence and ss 193 and 194 regarding governance do not apply to it.

ICASA has been plagued by allegations of lack of independence, with observers lamenting the ‘capture’ of the regulator by government and the communications industry. There are differences of opinion amongst industry, civil society, and government and even within the executive, legislative and judicial branches of government on the source and extent of ICASA's constitutional mandate, particularly in the context of a converged sector. It therefore becomes critical to locate the appropriate place of ICASA in the Constitution in order to provide clarity on ICASA's constitutional rights and duties, as well and as to provide for a more independent and effective regulator.

This note chronicles the history of debate amongst academics, the executive and Parliament on these issues and examines the merits of their respective positions. A motivation is provided for the amendment of the Constitution to specifically include the authority amongst the other Chapter 9 institutions in ss 181, 193 and 194 and the substitution of the word ‘electronic communications’ for the word ‘broadcasting’ in s 192. This paper concludes by briefly discussing the political feasibility of such amendments.

II    Section 192: An independent authority to regulate electronic communications

It has long been speculated that the reference to broadcasting and not telecommunications in s 192 reflected the drafters’ intention to give meaning to certain rights of political priority, such as freedom of expression. The drafters assumed that broadcasting was the sole means of giving effect to such rights. Parliament has since acknowledged that given South Africa's political history, the provision of the existence of an independent regulator for broadcasting in s 192 was intended to give meaning to certain rights such as freedom of expression, the right of access to information and language rights.

In 2005, Parliament’s Constitutional Review Committee debated this issue extensively, but resolved to suspend its decision until the Convergence Bill had been passed. By 2006, the ECA had been enacted, aiming to promote convergence in the broadcasting and telecommunications sectors, but the proper construction of s 192 remained a vexed issue. The 2006 Constitutional Review Committee received a submission from Wits University academics White and Mochaba (as they were then), who argued that s 192 should be amended by substituting the words ‘electronic communications’ for ‘broadcasting’. UCT’s Professor Hofman agreed that s 192 did not take into account the convergence of electronic communications, but did not find such an amendment necessary. In its submission, the Department of Communications agreed with the Wits academics that s 192 should be amended by substituting the words ‘electronic communications’ for ‘broadcasting’, citing the need to keep up with technological advances following the collapse in the distinctions amongst the industries of telecommunications, broadcasting and computers.

Parliament’s 2006 Report of the Constitutional Review Committee noted the disappearance in practice of the differentiation within the electronic media due to technological developments, a fact recognised in the ECA. The Committee recommended that s 192 be amended, but stopped short of suggesting a particular amendment. Since then the Department of Justice and Constitutional Development has failed to introduce the relevant amendment.

In 2007 Parliament’s ad hoc Committee on the Review of Chapter 9 and Associated Institutions (ad hoc Committee) reviewed ICASA. In the ad hoc Committee Report, the submission of Parliament's Constitutional Review Committee was considered, namely that s 192 of the Constitution should be amended by substituting the word ‘electronic communications’ for the word ‘broadcasting’. However the ad hoc Committee Report was of the view that ‘for political and legal reasons such an amendment is unnecessary at this time’. This cryptic conclusion is all the more curious given that Parliament's Constitutional Review Committee, the Department of Communications and at least one set of academics were unanimous in their view that s 192 should be amended for both legal and policy reasons. It is difficult to fathom what other political and legal reasons would render this amendment ‘unnecessary’. This non sequitur sullies an otherwise progressive report by the ad hoc Committee on ICASA. On the other hand, this may be a result of political compromise or of purely pragmatic thinking on the part of the drafters of the report.

III    Towards a proper location of ICASA in the Constitution

There is considerably less consensus amongst academics, parliamentarians and the Department of Communications on the question of whether ICASA is a Chapter 9 institution and if not, whether it should be included in s 181, together with consequential amendments to ss 193 and 194.  

Sections 181, 193 and 194 provide far stronger safeguards for the independence of Chapter 9 institutions than s 192 does for ICASA. Section 181 (2) provides that these institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice. Section 181 (3) requires other organs of state to ensure the independence, impartiality, dignity and effectiveness of Chapter 9 institutions. Section 181 (4) prohibits the interference by any person or organ of state with the functioning of Chapter 9 institutions. Section 193 requires that the National Assembly recommends the appointment of commissioners of Chapter 9 institutions, with the involvement of civil society in the recommendation process. Commissioners are then appointed by the President.

The question of whether ICASA is, or should be, a Chapter 9 institution is therefore no mere academic question, but one that goes to the heart of the issue of the independence of the regulator. This issue has been debated extensively by Parliament’s Constitutional Review Committee in 2005 and 2006, as well as by the ad hoc Committee in 2007. Although these committees did not ultimately make recommendations on the issue, a number of fundamental questions arise from the submissions made by academics, parliamentary legal advisers, the Department of Communications and ICASA. The first question is whether ICASA is, in fact, a Chapter 9 institution. Secondly, if it is not, whether it should be a Chapter 9 institution in the context of rapid developments within the communications sector. Related questions concern the issue of ICASA's independence: whether such independence should be constitutionally guaranteed and the extent to which it has been compromised in practice.
 
On the question of whether ICASA is a Chapter 9 institution, Parliamentary Legal Adviser Advocate Ramurunzi holds the view that ICASA was not listed in s 181 because it was never intended to be a Chapter 9 institution. The only constitutional protection afforded to ICASA is found in s 192. Sections 181, 193 and 194 therefore simply do not apply to ICASA. The Department of Communications agrees with this opinion, citing the ‘golden rule’ of statutory interpretation, being that words must be given their literal meaning.  Hofman agrees, adding that s 192 was inserted by the drafters under Chapter 9 for lack of a better place to put it. The ad hoc Committee Report speculates that the constitutional entrenchment of the broadcasting regulator was decided only in 1996, shortly before the passage of the final Constitution. It was thought that the protection afforded by s 15 (2) of the 1993 Constitution was sufficiently important to require incorporation elsewhere in the Constitution.  Another view expressed to the 2005 Constitutional Review Committee is that the omission of ICASA from s 181 was simply due to error.

Although White concedes that while a literal reading of ss 181, 193 and 194 suggest that they do not apply to ICASA, she argues that by employing the mischief rule of statutory interpretation, the requirement that the broadcast regulator in s 192 be independent, ensure fairness and promote a diversity of views supports a generous reading of ss 181, 193 and 194 with respect to their application to ICASA.  

It is trite that the ‘golden rule’ of statutory interpretation is that the words of a statute must be given their plain meaning unless the words used are ambiguous, vague, misleading or would result in an absurdity, in which case a court may deviate from that meaning in order to avoid such absurdity. The wording of Chapter 9 is very clear and the plain meaning of the words used therein results in no absurdity. Section 192 is therefore excluded from the ambit of ss 181, 193 and 194.

We now turn to the next question, namely whether ss 181, 193 and 194 should be amended to accommodate ICASA. This question turns on the merits of maintaining constitutional protection for ICASA in the first place. The Department argues that the word ‘independent’ is not an integral part of s 192 and that ICASA was never intended to be independent by the drafters of s 192. It recommends that the word ‘independent’ should be removed from s 192, resulting in the amendment of the name of the regulator from ICASA to the Communications Authority of South Africa (CASA). This argument is without merit. The wording of s 192 is clear and its plain meaning contemplates nothing else but an independent regulator.

Because it is not listed as a Chapter 9 institution, the Department suggests that there is no justification for ICASA to be in the Constitution at all. Any concerns over the independence of the regulator to ensure fairness, efficiency and diversity have been addressed by the ICASA Act. Keeping the regulator within the Constitution has been made more undesirable by globalisation accompanied by convergence in electronic communications. According to the Department, both the ICASA Act and the ECA can be easily adapted to the ever changing electronic communications environment, as compared to the tedious exercise of amending the Constitution every time there is a change in the environment. The United States, Britain, Malaysia, Kenya and Tanzania are cited as examples of countries that have adopted the idea of using national legislation to regulate the communications sector.  

Hofman agrees with the Department, adding that it is inappropriate to have a constitutionally independent body regulating a particular sector of the economy. There is no constitutionally mandated regulator for mining, transport or retail, he argues, so why is it necessary for telecommunications? The question becomes even more relevant because, according to Hofman, telecommunications is becoming less of a scarce resource. Hofman questions the value of an independent body running the telecommunications industry without it being accountable to the Minister.  One response is that communications is given special constitutional consideration and is an implicit socio-economic right.

While a comparative analysis of regulators in other jurisdictions is beyond the scope of this note, the precarious position of ICASA in South Africa’s constitutional and statutory milieu is distinguishable from that of the United States, where the FCC is stronger and more independent than ICASA. Britain, of course, has no written constitution.

The Department’s focus on the locus standi of ICASA is a misunderstanding, as the Constitution is not the only place that provides for an independent regulator. In fact, the ICASA Act goes much further than s 192 in guaranteeing ICASA's independence. Section 3 (3) of the ICASA Act requires that it perform its functions without fear, favour or prejudice. In this respect, s 3 (3) mirrors the provisions of s 181 (2) of the Constitution. Furthermore, s 3 (4) of the ICASA Act states that ICASA must function without any political or commercial interference. Secondly, there are other constitutional institutions, not found in Chapter 9, which are nonetheless independent, such as the Pan South African Language Board, the Financial and Fiscal Commission, the National Youth Commission, Judicial Service Commission and the Public Service Commission. The relevant constitutional provisions and legislation determine their legal status.

The Department’s assertion that the independence of the regulator has been safeguarded by the ICASA Act does not withstand closer scrutiny. The current appointments provisions in s 5 of the Act may fail to pass constitutional muster, because they are not sufficiently similar to the procedures for other Chapter 9 institutions. In particular, the vesting of the responsibility for the appointment of councillors in the Minister, rather than the President, may not meet the constitutionally required standard of independence laid down in s 192 of the Constitution, as interpreted by the courts and authorities.

The ad hoc Committee Report recommends that the ICASA Act should be amended to make the President, rather than the Minister, responsible for the appointment of councillors. Significantly, the Report finds a number of other provisions in the ICASA Act to be in conflict with ICASA's independence. It recommends that the powers given to the Minister which may negatively affect ICASA's independence be revised.

An independent regulator is necessary both for the protection of free speech and the economic development of the communications sector. The ad hoc Committee Report confirms this and highlights the importance of an independent regulator for broadcasting as a key construct of democracy. Especially in South Africa, where duopolies continue to exist, the regulator must be vigilant in monitoring the behaviour of the incumbents with regard to possible overcharging and denial of fair access to rivals. The Report points out that despite some liberalisation of the telecommunications market the State has retained significant shareholdings in the communications sector.

In its submission to the ad hoc Committee, ICASA appears oblivious to the skirmishes over its constitutional future, meekly submitting that: ‘Although the legislative framework does provide clear, workable and empowering provisions, it should be noted that industry stakeholders may attach different interpretations to the law.’

ICASA trumpets its success in broadcasting and ascribes this largely due to the autonomy it enjoys under Chapter 9 of the Constitution. It concedes however that telecommunications is characterised by a range of unintended policy outcomes, job losses in the sector, super profits of its incumbents, increasingly less foreign direct investment and ICASA's own institutional incapacity to anticipate, regulate, monitor and mitigate these developments.

The ad hoc Committee Report finds that ICASA’s understanding of its own functions is no more than ‘adequate’. It highlights the necessity for competition within the communications sector and as a fundamental enabler of economic growth in the South African market. The Report recognises that the liberalisation of our communications sector, which is accompanied by a rapidly increasing range of services and stakeholders, requires a sophisticated and independent regulator to ensure maximum benefits to our society.

Several authors have chronicled the interference by the Minister in both telecommunications and broadcasting. One commentator views ANC political culture, obsessed with consolidating power and discouraging public criticism, as being the ultimate cause of the undermining of the independent regulation of the telecommunications sector. The ANC-led government’s distrust of ICASA and its wariness about permitting real independence for the regulator has manifested in ICASA’s authority and budget being so often undercut by the Ministry and its Department of Communications.  

Much has similarly been written about the threats to ICASA’s independence contained in the ECA's predecessors, the Telecommunications Act and IBA Act, and the manifestations of this industry and/or ‘political capture’. While the ECA is an improvement on its predecessors and the ICASA Act provides some safeguards to protect ICASA, insidious interference in its independence and the lack of sufficient safeguards against State interference creates the perception that the State is manifestly conflicted, playing rule-maker (through Parliament), referee (ICASA) and player (Telkom and Vodacom, through Telkom’s shareholding in Vodacom and also in the SABC in which it is the sole shareholder). The ad hoc Committee Report finds that perceptions that ICASA lacks independence are ‘undermining its credibility’. Other reports have noted that due to factors such as chronic underfunding and high staff turnover, ICASA lacks meaningful institutional independence.

Several sections of the ECA allow the usurping of ICASA powers by the Minister and do not satisfy the criteria for independence required by the Constitution and articulated by the Constitutional Court. ICASA still “must consider policies made by the Minister… and policy directions issued by the Minister”.  Section 3 (1A) was used to fast-track the establishment of Infraco and was tantamount to the issuing of a licence by Parliament. ICASA may only accept and consider applications for individual ECNS licences in terms of a policy direction issued by the Minister, meaning that ICASA is effectively held hostage by the Minister. The Minister’s recently issued guidelines on undersea cables are not so much guidelines as licence application procedures, the issuing of which is ICASA’s legislated function. The national radio frequency plan, USAASA and the 112 Emergency Centres should be approved by ICASA, not the Minister.

IV Conclusion

In the context of rapid developments within the communications sector, it may well be more convenient for government to amend the ICASA Act and the ECA rather than the more complex process of amending s 192. However the Minister’s constant incursions into the independence of ICASA, institutionally weak as it is, require its constitutional mandate to be clarified and its authority buttressed. Especially in South Africa, where duopolies continue to exist, the regulator must be sufficiently empowered to monitor the behaviour of the incumbents to ensure competition in the communications industry and to ensure affordable access to communications services for all South Africans.    

As noted by many observers and confirmed in the findings of the ad hoc Committee Report, ICASA’s independence is not guaranteed, either in the Constitution or in the ICASA Act. The ICASA Act should be amended to reduce the Minister's powers and to bring the Act into line with the standards of independence set out in s 192 and the rest of Chapter 9.

It is critical to locate the appropriate place of ICASA in the Constitution in order to provide clarity on ICASA's constitutional rights and duties. In their submission to the 2006 Constitutional Review Committee, White and Mochaba submit that the following amendments ought to be made to the Constitution: the insertion of a new sub-section in s 181(1): ‘(g) The independent authority to regulate electronic communications.’; the substitution of the word ‘electronic communications’ for the word ‘broadcasting’ in s 192; the insertion of the words ‘or authority’ after the word ‘Commission’ in s 193(1); the insertion of a new sub-ection (d) in s 193(4), which is to read as follows: ‘(d) the independent authority to regulate electronic communications’; the insertion of the words ‘or authority’ after the word ‘Commission’ in s 194(1); and the insertion of the words ‘or authority’ after the word ‘Commission’ in s 194(2)(b).  

White and Mochaba’s suggestions should be adopted and, if passed by Parliament, would provide for a more independent and effective ICASA. Since Parliament's Constitutional Review Committee has already agreed to the substitution of the word ‘electronic communications’ for the word ‘broadcasting’ in s 192, there is no reason why Parliament should not pass this amendment.

The political feasibility of the remainder of the amendments proposed by White and Mochaba is beyond the scope of this paper. Suffice to say that the history of regulatory capture by government and industry has come at the expense of the independence of the regulator. The change of leadership in the ANC provides an opportunity to empower ICASA by providing it with a stronger constitutional mandate.