A successful request to the parliamentary committee on telecommunications & postal services, brought by the Democratic Alliance, means the Electronic Communications Amendment Bill will likely no longer be passed in parliament before the 2019 general election, frustrating government attempts to fast-track the controversial bill into law.
The draft legislation, which creates the framework for a wholesale open-access network, or Woan, has drawn severe criticism from Vodacom, MTN and others over, among other things, its proposal to force network operators to provide wholesale access to their infrastructure on a cost-orientated and open-access basis as well as its proposal to usurp certain powers from communications regulator Icasa and give these to the telecoms minister.
DA MP Marian Shinn told TechCentral on Wednesday that the party last week wrote to committee chair Jabu Mahlangu, questioning the bill’s constitutionality and warning that it had been “incorrectly tagged” when submitted into the parliamentary process.
Shinn said it was tagged as a “section 75” bill, whereas the chapter of the draft legislation dealing with the rapid deployment of telecoms infrastructure needed to be put before the provinces and tagged as a “section 76” bill.
“The bill has today been re-tabled in parliament as a section 76 bill. This means it cannot be passed in this parliament before the election as it has to be debated in the provincial legislatures and in the national council of provinces as well as the national assembly,” she said.
“(The telecoms department’s) attempt to steamroll this bill through parliament to fast-track the formation of the Woan has failed,” Shinn said. “We are now involved in constructive engagement to find means to fast-track the good portions of the bill in some other process, which will probably be decided next Tuesday.”
Icasa’s independence
On the bill’s constitutionality, Shinn argued in her request to the committee that an aspect that needs to be interrogated is the impact of the bill on communications regulator Icasa. The regulator’s independence from the executive arm of government is enshrined in the constitution.
“I am sure that all of us share concern for the independence of Icasa in instances where the executive has the authority to make certain prescriptions. For this reason, I would ask that our concerns be assuaged that there will be no infringement of its constitutional mandate,” she wrote.
“We have the obligation to pre-emptively raise any possible constitutional issues that may exist and to address them as a matter of the utmost urgency. It has become too commonplace for legislation to be referred to the constitutional court after being passed by this house, just for it to be declared invalid and referred back here. This committee has done excellent work to avoid such embarrassment and I, as a member, would insist that we keep our track record clean in this respect.”
The committee should not “succumb to external pressure to rush through our work and I submit that the handling of this bill should be no exception to this rule”.
Parliamentary hearings on the bill, scheduled for Thursday and Friday this week, will continue, Shinn said. This process will afford the committee the opportunity to get “comprehensive input” for when a decision on further action can be formulated. — © 2018 NewsCentral Media