Law so vague it makes no sense

Weekend Post (South Africa) - - THIS WEEK YOU’RE SAYING... - Mar­tin van Staden Le­gal re­searcher at the Free Mar­ket Foun­da­tion

When a law is suf­fi­ciently vague and no rea­son­able per­son can make head or tail of what it means or what its im­pli­ca­tions are, that law fails to live up to the le­gal­ity stan­dard con­tained in sec­tion 1(c) of the con­sti­tu­tion, which pro­vides that South Africa is founded upon the supremacy of the con­sti­tu­tion and rule of law.

The Elec­tronic Com­mu­ni­ca­tions Amend­ment Bill, in its cur­rent form, is rife with con­fu­sion, vague­ness and am­bi­gu­ity and may well be com­pletely void for its lack of clar­ity. Govern­ment must fix these prob­lems and en­sure its le­gal drafters gain an un­der­stand­ing and ap­pre­ci­a­tion for the rule of law.

The bill, in its essence, amounts to a com­plete centralisation of law – and de­ci­sion­mak­ing power in mat­ters re­lated to in­for­ma­tion and com­mu­ni­ca­tion tech­nolo­gies (ICT) in the hands of ex­ec­u­tive of­fi­cials – usu­ally the min­is­ter of telecom­mu­ni­ca­tions or the In­de­pen­dent Com­mu­ni­ca­tions Author­ity (Icasa) – when this power is prop­erly re­served for par­lia­ment.

The bill does this, not only ex­plic­itly, by vest­ing un­lim­ited pow­ers in the hands of an of­fi­cial or en­tity, but also im­plic­itly, by fram­ing pro­vi­sions so vague that they can only be given mean­ing by ex­ec­u­tive dik­tat.

For ex­am­ple, the bill de­fines “high-de­mand spec­trum” as spec­trum for which de­mand ex­ceeds sup­ply, or spec­trum that is fully as­signed.

This definition is fair enough, but it adds a tail: “. . . as deter­mined by the min­is­ter . . . by no­tice in the Gazette, af­ter con­sul­ta­tion with [Icasa]”.

The min­is­ter is thus em­pow­ered to de­cide if de­mand ex­ceeds sup­ply or if spec­trum has been fully as­signed. But if de­mand ex­ceeds the sup­ply, mar­ket forces will bear this out, and if the spec­trum is fully as­signed it is im­me­di­ately ob­vi­ous. There is no need for the min­is­ter to get in­volved.

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