Constitutional Review: Make ICASA truly independent

Written by Andrew Rens on April 25th, 2008

Every year the Constitution of South Africa requires that the provisions of the constitution should be reviewed. A parliamentary committee reviews the provisions of the constitution. This year an invitation for public submissions (details below) has been sent out, submissions due by the end of May.

There are many valuable and important safeguards in the Constitution which should remain the same. There is one quirk though that affects the lives of many South Africans.

Its the odd status of ICASA. ICASA is the the Independent Communications Commission, a statutory commission charged with the ensuring that electronic communications enables democratic dialogue and economic growth.

There are a number of similar institutions mentioned in Chapter 9 of the Constitution. They are listed in section 181 which sets out important safeguards of their independence. The Human Rights Commission, the Auditor General and the Electoral Commission are amongst those listed.
Each one is important to democracy and good governance.

Later on in Chapter 9 is a similarly important institution. Section 192 speaks of “an independent authority to regulate broadcasting in the public interest…”

But the independent communications authority is NOT listed in section 181.

That means its independence is not guaranteed like the other institutions, the constitutional safeguards of section 181 are not specifically applied to the communications authority.

It is noteworthy that the section refers to an independent authority, so some have argued that it does not follow that ICASA is the independent broadcasting authority.

However since ICASA is the only independent authority regulating broadcasting, it is, for the time being, the independent broadcasting authority.
So what needs to happen to fix it.
Section 192 needs to be updated to set out that an independent authority must regulate broadcasting.

That regulator must be listed in section 181 (1) together with the Human Rights Commission and the Auditor General.

The result will be that the authority will be independent as required by section 181 (2) which will also require the authority to be impartial.

But that is not all, sub section 181 (3) requires that other parts of the state must assist the independent bodies, and sub-section 181 (4) prohibits interference with the functioning of the institutions.
Independent doesn’t mean unaccountable. Subsection 181 (5) requires the state institutions supporting constitutional democracy (also called the Chapter 9 institutions) to be accountable to the National Assembly, and report to the Assembly.

So write to Parliament and ask them to list the independent broadcasting authority in section 181 of the Constitution.
The Invitation for Public:

Invitation for Public Submissions by Joint Constitutional Review Committee
In terms of Section 45(1)(c) of the Constitution of the Republic of South Africa, the Joint Constitutional Review Committee must review the Constitution annually. Members of the public are therefore invited to make written submissions to the Joint Constitutional Review Committee on specific sections of the Constitution that they feel need to be reviewed. Enquiries, as well as written submissions can be made to:
Ms Teboho Sepanya: Committee Secretary, tsepanya@parliament.gov.za / tel (021) 403-3738 / 083 707 2187

The closing date for submissions is 31 May 2008 .

The Constitution is also found here: www.doj.gov.za/legislation/constitution/constitution.htm Issued by Mr O Montsitsi, Chairperson: Joint Constitutional Review Committee
 

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The World Rejects OOXML

Written by Andrew Rens on April 2nd, 2008

The most populous countries in the world have rejected the OOXML as an international standard but its been pushed through anyway. China, India, Brazil and South Africa have all firmly rejected OOXML as an international standard, in a re-visit of the voting process which took place during September 2007.
Although ISO has yet to officially release the result, early reports suggest that extensive lobbying has engineered a vote change in a sufficiently large number of countries so that the specification will be pushed through.

Although many developed countries initially rejected the specification, after intensive lobbying by Microsoft Corporation they have changed their votes, these include Ireland and the UK, and France, the latter in odd circumstances. Those weren’t the only problems, Norway’s process has been seriously flawed.

What does this mean for South Africa? First that South Africa’s standards body, SABS, is to be congratulated on running a transparent, representative process which reflects the view of South African experts on XML, and did not allow corporate lobbying to change what the experts found.

Second that South Africa stands with the most populous countries in the world, China, India and with Brazil, all of which are emerging as important global economies in rejecting the specification.

Third, that despite the rubber stamping by ISO the specification is no easier to implement, the problems remain.

Fourth, it is apparent that just as developed countries, led by Brazil have had to lead a movement for the re-orientation of the World Intellectual Property Organisation, so too it will be necessary for developing countries to engage in the reform of the International Standards Organisation. The flawed processes of ISO placed both the question of whether there should be two mutually incompatible standards, and whether there are Intellectual Property problems with the OOXML specifications beyond discussion by the national standards committees considering the standard.

National committees, thus disenfranchised, were told that they were confined to technical details. Thousands of technical problems were raised, most of which were not satisfactorily resolved during the Ballot Resolution Meeting. The consequence of these flawed processes together with intensive obbying by Microsoft has resulted in a devaluing of what an ISO standard represents.

ISO has suffered a severe blow to its reputation as an independent standards organisation, displaying vulnerability to vendor capture. What does the future hold for ISO?

 

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