(FXI/IFEX) – The following is an FXI press statement: FXI welcomes President’s decision not to sign Icasa Amendment Bill, calls on Department of Communications to desist from drafting unconstitutional legislation The Freedom of Expression Institute (FXI) welcomes the fact that President Thabo Mbeki has refused to sign into law the Independent Communications Authority of South […]
(FXI/IFEX) – The following is an FXI press statement:
FXI welcomes President’s decision not to sign Icasa Amendment Bill, calls on Department of Communications to desist from drafting unconstitutional legislation
The Freedom of Expression Institute (FXI) welcomes the fact that President Thabo Mbeki has refused to sign into law the Independent Communications Authority of South Africa (Icasa) Amendment Bill, on the grounds that it may be unconstitutional, and has referred the Bill back to Parliament. The Bill changed the appointment and dismissal procedures of the communication regulator’s highest decision-making structure, the Council, making the Minister rather than Parliament responsible for these procedures. The Bill would have also ensured that the Chairperson would account to the Minister for his performance, rather than to Parliament. These changes would have destroyed the constitutionally guaranteed independence that Icasa enjoys from the Ministry.
Had the Bill been signed into law, the FXI believes that it would have been subject to constitutional challenge for violating the independence of Icasa. In the longer term, this move could have compromised the freedom of expression of broadcasters, as a government-controlled regulator will probably not regulate broadcasters impartially and in the public interest, but in the interests of the government or the ruling party. South Africa has a sorry history of government control of broadcasters, and any attempt to reverse the sector’s hard-won independence must be condemned. The Bill represented such a reversal, and the FXI is pleased that sense has prevailed.
The FXI is particularly pleased that the President heeded the range of representations from different organizations urging him not to sign the Bill, given its almost-certainly unconstitutional nature. His decision proves that advocacy work can result in positive changes.
However, the FXI is concerned about the persistent tendency of the Department of Communications to draft constitutionally dubious legislation, and the Institute calls on the Department to desist from this now-firmly established trend.
In this regard, it should be noted that this is not the first time that the President has turned back possibly unconstitutional legislation: in 1999, he referred the Broadcasting Bill back to Parliament after representations were made to him about the possibly unconstitutional powers given to the Minister relative to the regulator (Icasa’s predecessor, the Independent Broadcasting Authority). Also, Departmental attempts to increase the powers of the Minister, and erode the independence of Icasa and the South African Broadcasting Corporation (SABC), have also been thwarted at various stages of debate on the Icasa Bill in 2000, the Broadcasting Amendment Bill in 2002, and the Convergence Bill in 2005.
We call on the President to take up the conduct of the Department of Communications in Cabinet, and to ensure that this trend is reversed. The Department has wasted the time and energy of many institutions by persisting with legislation that it surely realised would have been struck down at some stage. Its conduct must therefore be condemned in the strongest possible terms.
Background on the Icasa Amendment Bill
The FXI wrote to the President on 16 February 2006, requesting him not to sign the Bill, and highlighted three areas that were potentially unconstitutional. These provisions relate to the appointment of Icasa Councillors, removal from office of Icasa Councillors, and the setting up of a performance management system for the Icasa Council. The FXI noted that Icasa is an organ of state that is not within the national sphere of government. Therefore it is a contradiction for it to be subject to National Executive control. The Institute argued that the Constitutional Court has recognized institutional independence from the Executive as a crucial factor in independence, including independence of appointment and dismissal procedures.
With respect to the appointment of Icasa Councillors, the FXI argued that in terms of the Constitution, Parliament – as a multiparty and representative body – must play a role in the appointment process. To remove Parliament’s role and to make the Minister of Communications responsible for appointments, based on a shortlist developed by a panel, would ensure that the Minister controlled the appointment process. The FXI argued that this could not be constitutional. The FXI also noted similar problems with the provisions around removal of Councillors, which in terms of the Bill, would be performed by the Minister on recommendation of the panel.
The FXI also expressed concern about provisions around a performance management system for the Icasa Chairperson, which would probably not pass constitutional muster. The performance management system involves Councillors signing a performance agreement with the Chairperson, and the Chairperson signing an agreement with the Minister. Failure to sign an agreement is a ground for removal from office. The FXI argued that, in terms of the Constitution, Icasa and its Councillors are required to account to Parliament for its performance, and not the Minister.
The FXI argued that all these provisions combined would turn Icasa into an extension of the Department of Communications; as a result, the Authority would not be ‘independent, and subject only to the Constitution and the law’, as it will effectively be subject to Ministerial and Departmental control.
The FXI recorded its extreme disquiet about the process that led up to these problematic provisions being included in the Bill. The Institute participated in public hearings on the Bill, and expressed its opposition at the time to the above-mentioned clauses (as did many other organisations). The Portfolio Committee amended the Bill to reinstate the role of Parliament in Council’s selection process: an amendment that was accepted by the National Assembly. However, at the eleventh hour, the National Council of Provinces (NCOP) reinstated the original clauses. The FXI argued to the President that this about-turn made a mockery of the open and transparent process that preceded the NCOP amendments.
The FXI also cautioned that if a constitutional challenge proved to be successful, a pall would be cast on South Africa’s democracy in this, the year of peer review in terms of the New Partnership for Africa’s Development. South Africa has made numerous commitments regarding the importance of independent media regulation. These include the Southern African Development Community Declaration on Information and Communication Technologies and the Declaration of Principles of Freedom of Expression in Africa, of the African Commission on Human and Peoples’ Rights. The contradiction between the provisions of the Bill and these commitments will most likely come up as a concern in this peer review process.
