• IS welcomes the opportunity to comment on the ICASA Amendment Bill.

• IS congratulates the Minister and the Department of Communications for drafting and tabling the ICASA Amendment Bill.

• IS appreciates the opportunity to address the Portfolio Committee on the Bill.

• IS believes one of the key objectives of the Bill should be to create a solid legislative framework that will enable ICASA to regulate the industry.

Introduction

• Emerging consensus that strong governance regimes are cornerstones and vital pillars of communications policy reform.

• Critical for emerging markets to set up effective regulatory mechanisms.

• Global demand for creation of independent, non-arbitrary and consistent decision making agencies.

• Such agencies are viewed as necessary to guarantee stable regulatory environments for long term investment in the communications sector.

• Confluence of economic opportunity and political motivation gives rise to strategic behaviors on the part of stakeholders and creates inherent problems in the provision of communication services.

Weak regulatory regimes??

• Need for legitimacy that transcends beyond mere legality.

• Legitimacy achieved when various constituents of the sector accept authority of the regulator in all matters including matters of mere opinion.

• When such legitimacy is lacking operators are likely to challenge the authority of the regulator by appealing to the executive, through litigation or judiciary.

• More often than not corruption also creeps in through the back door.

What is regulatory independence??

• Regulatory independence does not imply independence from government policy or usurping the power to make policy.

• Rather it should be seen as independence to implement policy by making objective, well reasoned written decisions arrived at through transparent processes and based on a complete public record.

• During this process regulators should be free and be seen to be free from political influence. Impartial decisions based on the record should not be undermined for political reasons.

• The scope and substance of a regulator's jurisdiction should be clearly mandated by statute.

• Necessary for regulators to be viewed as being strong and enjoying independence in terms of finance, structure and decision making from operators and from executive arm of government.

Appointment & Removal of Councillors

• Bill proposes fundamental change in the way Councillors are appointed.

• Departure from the current Parliament led process to a Minister led process.

• Parliament process characterized by transparency and a robust and participatory engagement.

• Not clear whether these values will be maintained in the proposed appointment process.

• The proposed approach goes to the heart of the perception of political interference.

Funding of ICASA

• Previously published Bills suggested a move towards expansive measures for funding the regulator.

• Funding is a key element of the institutional framework of an effective regulator.

• ITU and the UN recognizes financial autonomy as one of the primary conditions necessary to ensure regulatory independence.

• Increased responsibilities for ICASA arising form the Convergence Bill.

• Parliament should instead introduce robust measures that guide against overspending and inefficient use of monies.

Conduct of enquiries

• ICASA has primary jurisdiction over all issues relating to communication disputes, complaints or enquiries.

• We welcome the current formulation in the Bill which sets out that once ICASA has made a finding it can translate it into a regulation having followed due process.

• ICASA's powers should be extended to include declaratory powers on matters of interpretation.

• Effect of this is that ICASA will no longer be viewed as making findings which do not have a binding effect on the industry.

Complaints and Compliance Committee

• A regulator maybe powerful in law and be weak in practice if it does not have strong enforcement powers. Difficulty to deal with dominant incumbent operators.

• Incumbent operators are able to stand in the bottleneck of the telecommunications value chain restraining opportunities for new players.

• They are also able to use obstructionist tendencies premised on self help measures designed to undermine the authority of the regulator. Telkom's recent refusal to interconnect with IS being a case in point.

• The Bill needs to expressly enable ICASA with powers to deal on urgent basis with such practises or conduct.

Concluding Remarks

• Regulators independence exists within a legal context which is democratic and politically accountable.

• Regulatory independence therefore implies independence to acquire specialized skills, to manage the industry without undue interference and to be accountable for results according to a specified performance criteria.

• In principle it is no different from a delegation of specific responsibilities.

• In practise the degree of independence enjoyed by a regulator is directly proportionate to its effectiveness.

END

Thank you