Sector 3: Broadcasting regulation is transparent and independent, the state broadcaster is transformed into a truly public broadcaster. 3.1 Broadcasting is regulated by an independent body adequately protected against interference, particularly of a political and economic nature. ANALYSIS: The broadcasting and telecommunications regulator, the Independent Communications Authority of South Africa (ICASA), is an independent body, protected by the constitution and the ICASA Act. It has more independence than most regulators around the world. A 2006 amendment to the ICASA Act, however, reduces the regulator’s independence and seems to be in conflict with the guarantee of independence stipulated in the constitution. In general, the role of the Minister of Communications has been strengthened in regard to the appointments procedure for the Council (see indicator 3.2) but also in regard to the body’s supervisory and policy making powers. The new legislation introduces a performance management system which enables the minister to judge the performance of the chairperson and councillors on an annual basis. Such scrutiny by government certainly endangers the independence of ICASA. To date, however, this provision has not been implemented. Furthermore, the minister is entitled to give policy directions to the regulator (with the exception of licencing). Even though these directions are not legally binding, they could put unwarranted pressure on the regulator. And while legislation explicitly prohibits ministerial involvement in licensing, the Minister of Communications issued draft directions in 2007 suggesting that a broadcasting licence be given to World Space. After strong protests, these directions were subsequently withdrawn. The Amendments also allow for other funding apart from parliamentary allocations as had been the case previously. Now ICASA may receive funds through other mechanisms as determined by the Minister of Communications together with the Minister of Finance and Cabinet. However, no such determination of alternative sources of funding has yet been made. The licence fees that ICASA raises still go straight to Treasury. All these and other changes to the original ICASA Act have been criticised by a Parliamentary Ad Hoc Committee (mandated to assess constitutionally independent authorities in South Africa) as endangering the constitutionally guaranteed independence of ICASA. The committee suggested, among others, that both the performance system and the funding mechanism be reviewed. According to the committee, ICASA should be financed by a direct parliamentary allocation and not through the Department of Communications. The report was released in August 2007, tabled in parliament in February 2008 and still has to be debated. Due to a lack of funding, ICASA is not able to pay really competitive salaries to attract the necessary top technical skills and the best legal minds. This makes ICASA vulnerable to interferences of an economic nature and results in the body making overly cautious decisions at times in order to avoid possible litigation. So This Is Democracy? 2008 -209- Media Institute of Southern Africa