From state to 'independent' regulation: a critical analysis of the Independent Communications Authority of South Africa
Date
2009-07-01T11:54:35Z
Authors
Hlongwane, Siphiwe Robert
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Abstract
Abstract
The emergence of independent regulatory authorities (IRAs) in many countries is but one
of the many of effects of globalisation in the communications sector. These effects have
been such that developing countries like South Africa have also instituted IRAs. The
challenge everywhere, though, has been the question of the independence of these
agencies. This is particularly evident in most developing countries, where traditionally
regulation of the communications sector has been the preserve of the state. Using a
combination of institutional analysis, informant interviews and document analysis, this
paper explores the independence of the Independent Communications Authority of South
Africa (ICASA). Public interest and capture theories of regulation provide the conceptual
foundation and direction of the paper.
The assessment of ICASA’s independence is mainly based on three indicators identified
by the Constitutional Court in relation to regulatory and other state institutions in South
Africa, namely: institutional independence, administrative independence, and financial
independence. The paper argues that ICASA is not as independent as it should be. First,
the interference from the Minister of Communication in certain regulatory aspects such as
the National Radio Frequency Plan and infrastructural regulation in general has meant
that the Authority is beholden to the whims of the Minister. Second, lack of clear
constitutional protection for ICASA has put the Authority in a compromised position,
particularly when it comes to dealing with the Department of Communications (DoC).
Third, the Authority’s funding base is inadequate to enable it to effectively fulfil its
mandate, and therefore has the potential to undermine its independence from regulatees.