For the purpose of this treatise, I will focus on a few of the building blocks that in my opinion could elevate competition within the electronic communications space while spurring the growth of stronger and more resilient brands alongside consumer rights and local participation.
INDUSTRY FORUM AND STAKEHOLDER PARTICIPATION
One of the major provisions of Act 775 that is often overlooked is in respect of the industry forum. Section 29 of the Act recognises stakeholders in the Electronic Communications space who must be brought together periodically ‘to discuss matters of common interest to the industry’. Fortunately, Ghana’s electronic communications landscape has improved immensely since the Act came into force. It has a value chain that can boast of identifiable groups including the following;
Chamber of Telecommunications; a grouping of Mobile Network Operators
The Internet Service Providers Association (GISPA)
The Institution of Engineering and Technology
The Institute of ICT Professionals
Wireless Application (Value Added) Service Providers (WASPAG)
Chamber of Technology; a grouping of technology companies
These groups play varied, sometimes exclusive but usually interdependent roles within the digital economy; we can only refer to our digital space as complete if all these stakeholders, their interests and inputs are factored. They all deserve a seat at the table to help elevate the discourse to reshape the narrative on digitalization, its value, impact and related matters. Together, they will provide better representation with all the unintended benefits to GIFEC as Trustees of The Fund as per Section 34 (1) of the Act. They will do so, by bringing together varied domain experiences and subject matter expertise that will help decisions made by the Board of Trustees of GIFEC become more holistic. To this end, it will be beneficial to shake off the old arrangement that has just the MNOs individually representing the industry as the ‘forum’. I believe this change in direction from the point of view of the Ministry Of Communications is long overdue. This is a direct invitation to the Ministry to recognise and designate these stakeholders collectively as the “industry forum”, have them convene independently and alternate as facilitators as opposed to Section 26 (6) and (7) of the Act which makes the industry forum subservient to the Authority in more ways than one. These groups should be seen for what they are; partners, stakeholders and resources to the Authority.
That said however, it is incumbent on these organisations to put in the right structures as well as position themselves to perform the functions required of them in this role. We will later see how this industry forum can play a pivotal role in the development and maintenance of policy as part of a review committee that must be set up for the purposes of advancing standards, governmental agenda and the growth of the industry. It must be stated here that the growth of these groups will help deepen professionalism in the electronic communications space as they will be obliged to self-regulate as they grow in structure, composition and self-governance.
DISPUTE RESOLUTION & FAIR COMPETITION
Regulations are based on the premise that social good (public interest) is best served when markets work efficiently in an open and competitive manner – conflict resolution cannot exist in isolation. From Sections 84 to 93 of Act 775 are provisions made for dispute resolution and related structures. The framework as it exists today, would have been sufficient if Ghana had a statute that governed competition. With no such laws in place, it is my opinion that the provisions of Act 775 with respect to dispute resolution be made a lot more comprehensive or pointed to a mechanism or structure that exhausts the rules of fair competition in a ‘telecom friendly’ way. Here it must be noted that the structures that set out the basis of competition in the telecommunications space in Ghana, like most other countries were underpinned by competition law and agreements at the World Trade Organization in particular.
In the absence of that balance which will openly guarantee fairness in resolving industrial disputes, it is my expressed view that an independent administrative body (Regulator) be established to oversee and manage all activities in the digital space for the public good. Having a legally backed independent regulator will support most of the provisions stipulated in Section 88 of the Act which provided for a Tribunal under the auspices of the NCA. An independent Electronic Communications Commission or Authority that will have all statutes relating to electronic communications, including but not limited to Acts 769 (National Communications Authority), 771 (National Information Technology Agency), 772 (Electronic Transactions) and 775 (Electronic Communications Act) falling under its purview. An independent arbiter whose role will mimic those of the CRTC (Canada), OfComm(UK), MCMC (Malaysia) and ARCEP (France), although some functions will vary slightly per our legal environment.
This Regulatory Authority or Commission will seek through its activities to prioritize the empowerment of the citizenry through technology use, strengthen the potential of investors and businesses to make fair returns on their investments as good corporate citizens and above all help Ghana navigate the landscape of electronic communications to meet the ever changing needs of stakeholders through the adoption of standards and best practices. Ideally, this commission will have a membership drawn as follows;
An Appeals Court Judge – Chairman of the Commission
1 Representative From the Communications Ministry
3 Representatives from the Industry forum
2 Representatives from Telecom related CSOs
This Commission will have an Administrator (Registrar) who will be responsible for its daily operations and allied support staff to assist him in his duties.
Ghana is a member of both the International Telecommunications Union (ITU) and Commonwealth Telecommunications Organisation (CTO), two organisations at the forefront of promoting best practices for the growth of the digital economy. In various publications, these organizations have espoused independent regulation as a panacea to some of the issues bedeviling telecommunications, these frameworks have fully been embraced in various jurisdictions leading to the setup of regulatory structures that are performing creditably well. My position is strengthened further by these two examples in our statute books.
(Reference Sections 84-86 of Act 775) Giving the Authority (NCA) and its Board a freehand to set up a dispute resolution process as well as compose a Committee for resolving such disputes without any checks and balances, is not the best solution, but an injury to the rules of natural justice that could easily lead to allegations of procedural fairness; be they genuine or perceived. With a basic principle of natural justice, ‘nemo judex in causa sua’ as a guide, we should not allow the Authority to continue being a judge in its own cause as it renders questionable any decisions from this arrangement and makes room for further litigation which erodes investor and public trust
Mandating the Authority to fund the setup of a court for the purposes of settling electronic communication disputes (Reference Sections 89-93) only makes the court beholding to the “one who pays the piper”, as he will “call the tune”. The independence of the court must be guaranteed under the auspices of the independent Regulator and be funded differently other than prescribed in Section 89 (3). I however cannot disagree much with Section 89 (1) (b) save for the fact that we need to have a pool of independent subject matter experts who qualify as ‘expert witnesses’ to be empanelled to support the Chairman make well informed and progressive decisions on matters before that court.
It must be noted that the Tribunal as prescribed by this Act (in Section 88) has since not been set up 12 years after the fact. This is because it is not in the interest of the NCA to do so. It must also be noted that there is a vast body of knowledge out there, as well as many other professionals to help us get ahead if we chose this new path. The independence of this tribunal under a regulator will create an environment that will not only guarantee that justice is done, but is seen to be done. With unambiguous rules of procedure built on those used in the judicial service and making accommodation for known and accepted frameworks for telecommunications management, I believe the court as composed based on the proposal above, will have all stakeholders repose trust in it than they will in the current process. Such a move will undoubtedly raise the appetite of investors with the right mix of people and technology to invest in the sector.