REGULATING DURING DISASTER

During difficult times that require legislative action, lawmakers come under pressure to make difficult decisions. There are invariably competing interests in making or changing a law, some personal, some political, many simply practical. How much emphasis any one issue gets is often a question of how many people hold the same view, rather than whether or not that particular issue is the most important, deserving, or relevant.

The national state of disaster declared in response to the global pandemic – the coronavirus causing COVID-19 – has resulted in unprecedented pressure to make rules. The principal reason for the rules is ostensibly the need to ensure public safety. The underlying reason is that if too many people get too ill, there are an insufficient number of hospitals with ventilators and staff who know how to use them, to make them widely available. As in other countries, difficult choices may have to be made about who gets the ventilator. This is a different kind of competing interest – the one that weighs an old person’s need against that of a younger person, with more years yet to live.

In making rules, government has had regard to the Disaster Management Act, 2003 – the preamble to this Act makes it clear that it is intended to provide for “an integrated and co-ordinated disaster management policy that focuses on preventing or reducing the risk of disasters, mitigating the severity of disasters, emergency preparedness, rapid and effective response to disasters and post-disaster recovery…and matters incidental thereto”. Section 2 specifically excludes from the ambit of the Act any “occurrences” that can be dealt with effectively in terms of other legislation. It is a somewhat vague section since it then allows “the Minister” to identify those occurrences, and also to issue guidelines on the application of this section.

In any event, the point is that actions taken under this Act should be aimed at the matters identified by “the Minister” who in this case is the Minister of Co-operative Governance and Traditional Affairs. The declaration of the national state of disaster was made under section 27(2), a section that circumscribes the ambit of any action that may be taken by the Minister or in fact anyone else by stating quite clearly that “The powers referred to in subsection (2) may be exercised only to the extent that this is necessary for the purpose of – (a) assisting and protecting the public; (b) providing relief to the public; (c) protecting property; (d) preventing or combating disruption; or (e) dealing with the destructive and other effects of the disaster.”

This article is not intended to debate the constitutionality or otherwise of directions and regulations made to date. However, it is intended to raise for your consideration, some of the issues stemming from the directions issued by the Minister of Communications and Digital Technologies, and the regulations published by ICASA.

First, the Minister herself is limited to those matters that are “within her mandate” under regulation 10(2) of the Disaster Management Regulations published by COGTA. Is mobile number portability within the Minister’s mandate? Is track and trace within her mandate? Is giving instructions to broadcasters within her mandate? Are “OTTs” and “ISPs” within her mandate? Can a Minister who has not, in 14 years, fulfilled the mandate in Chapter 4 of the ECA (on rapid deployment) purport to subvert the rights of land owners, public and private, in the name of preventing the spread of COVID-19? And number portability – surely this is a mistake? A rational lawmaker should ask if these directions are actually necessary and consistent with the requirements and limitations of the Disaster Management Act?

Second, does the Universal Service and Access Agency of South Africa whose mandate it is to administer contributions made to the USAF by licensees, have any idea how it is to use whatever money may be in that Fund to support the directions of the Minister by improving “[district and local municipalities’] broadband and digital government capabilities to mitigate the negative impact of COVID-19 on the provision of services to their services to the citizens.” It is far from clear how broadband will assist in preventing the spread of the disease, ensure staff continue to be employed within government or private institutions, or train up more health workers, for example. If digital government capabilities do not exist now, would their creation be a priority at this time?

Third, does ICASA have no other option but to hand over high demand spectrum to what will probably end up as only the largest and wealthiest operators in South Africa to enable them to do what they already do, which is provide services to South Africans? Do the people with no money for food and no jobs really need broadband services? Do people in LSM7 and upwards really need more data to be able to watch Netflix all day long? Will the grant of this valuable resource for a limited period on condition that a licensee can ‘prove’ it needs it (whatever that means) have the effects contemplated in the Disaster Management Act? Or will this instead entrench the dominance of those that are most likely to apply for this emergency resource and least likely to want to give it up when they have ‘invested’ in infrastructure that will be required to even use these bands of spectrum?

And rollout of network infrastructure – how likely is it that operators are going to find a spare million to throw up a mast or dig a trench to ensure that everyone is connected to a serivce most of them cannot afford? And at what cost to the environment?

Wouldn’t ICASA be more productive focussing on reducing input costs to operators so they in turn can reduce their prices to consumers? Seeking to extract reductions in national roaming prices and facilities-sharing charges would without question help smaller operators without causing undue or lasting hardship to larger operators; enforcing number portability rules (the 2005 ones) would benefit subscribers who might find it cheaper to take up services on other operators than their current provider. Removing on-net discounts in favour of off-net discounts would also provide relief not only to smaller operators (whose very existence is under threat, and that of their employees even more so) but to consumers in the broader society.

The number of questions could result in a really lengthy article. The nub of the matter is that very little thought has gone into what real people are facing in real life. Shoving broadband policy objectives out into society as directions or regulations will not improve our economy during this period. Before rushing into regulating, the type of “occurrence” that lawmakers seek to address should be considered carefully, alongside the type of activities which would actually benefit from intervention. To repeat the provisions of section 27(3), intervention should be limited to “(a) assisting and protecting the public; (b) providing relief to the public; (c) protecting property; (d) preventing or combating disruption; or (e) dealing with the destructive and other effects of the disaster.”

This is not legal advice, it is provided for your interest and represents the opinions of the writer, Kerron Edmunson.