When a law is sufficiently vague and no reasonable person can make head or tail of what it means or what its implications are, that law fails to live up to the legality standard contained in section 1(c) of the Constitution.
This section provides that South Africa is founded upon the supremacy of the Constitution and the Rule of Law. The Electronic Communications Amendment Bill, in its current form, is rife with confusion, vagueness and ambiguity and may well be completely void for its lack of clarity. Government must fix these problems and ensure its legal drafters gain an understanding and appreciation for the Rule of Law.
The Bill, in its essence, amounts to a complete centralisation of law- and decision-making power in matters related to information and communication technologies (ICT) in the hands of executive officials – usually the Minister of Telecommunications or the Independent Communications Authority (ICASA) – when this power is properly reserved for Parliament. The Bill does this, not only explicitly, by vesting unlimited powers in the hands of an official or entity, but also implicitly, by framing provisions so vague that they can only be given meaning by executive diktat.
For example, the Bill defines “high-demand spectrum” as spectrum for which demand exceeds supply, or spectrum that is fully assigned. This definition is fair enough; but the Bill adds a tail: “… as determined by the Minister…, by notice in the Gazette, after consultation with [ICASA].” The Minister is thus empowered to decide whether demand exceeds supply or whether spectrum has been fully assigned – a ridiculous provision. If the demand exceeds the supply, something that market forces will bear out, then that is high-demand spectrum; and if the spectrum is fully assigned, something that will be immediately obvious, the spectrum is high-demand. There is no need for the Minister to get involved, yet this proposed law insists on centralising power unnecessarily in the hands of this official.
The notion of sharing infrastructure and “existing facilities” is also a prominent part of the Bill, but is tortuously confusing. ICASA must, for instance, ensure that service providers “seek out alternatives” to building new infrastructure, one alternative of which is “the sharing or leasing” of their facilities. The Bill will also obligate service providers to “provide wholesale open access” to their existing infrastructure when their competitors request such access.
These bizarre provisions, of course, fall completely foul of this government’s stated aim to foster fair competition and fair businesses practices. Can it be that government is now actively going to force, for instance, MTN, which has invested billions of rands into building towers and infrastructure – and has shared this infrastructure on a voluntary basis before – to provide access to their property to competitors? This surely cannot be the case; but what “sharing” means in this context is not defined. This lack of clarity means that ICASA will interpret and apply these provisions for itself, which might yield absurd and damaging consequences for our ICT industry.
The Bill goes on to empower ICASA to make regulations for rapid deployment of infrastructure that will give obligations to service providers in the industry. ICASA may also “prescribe additional terms and conditions” for licences. When powers like these are assigned, the question of vagueness should be foremost in our minds. In a constitutional state there exists no such thing as unlimited government power. When ICASA is empowered, thus, to “prescribe additional terms and conditions”, one cannot help but be confused, for this power appears to be virtually boundless. To add insult to injury, it is not the only instance of what appears to be law-making power being vested by the Bill in the hands of bureaucrats in the executive government.
Is it not Parliament that we elect every five years to make the laws that will bind us? How is it that ICASA will now have the power to essentially legislate obligations for South African entrepreneurs? Regulations, properly understood, are supposed to technically implement the substantive provisions of laws. A regulation itself cannot, under the Rule of Law, amount to substantive law, because a regulator has no democratic mandate. And Parliament cannot assign its democratic mandate to a regulator any more than a surgeon can assign to a nurse the duty of performing a procedure while you lie unconscious on the operating table. Your agreement is with the doctor, not the nurse. And as citizens of South Africa, our social contract is with Parliament, not with a nameless, faceless bureaucrat hidden away somewhere in a basement office in Pretoria.
The Electronic Communications Amendment Bill is a classic case of a proposed law that fails to adhere to the legality standard in the Constitution. It disregards how our system of governance works and tries, unashamedly, to subvert the Rule of Law and give us the rule of man.
Martin van Staden is Legal Researcher at the Free Market Foundation and co-author of The Real Digital Divide: South Africa’s Information and Communication Technologies Policy (2017)