Constitutional Review: Make ICASA truly independent

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…”

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

However since ICASA is the only independent authority regulating broadcasting, it is, for the time being, it.

So what needs to happen?

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, / 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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