By Kananelo Boloetse

Dear Lesotho Communications Authority (LCA) Chief Executive Officer.

It is my pleasure to extend my congratulations to you for ensuring, in your short stint as the Chief Executive Officer (CEO), that for the first time since its establishment 20 years ago, Lesotho Communications Authority (LCA) stands on the side of the people by instructing Econet Telecom Lesotho (ETL) and Vodacom Lesotho (VCL) to stop charging consumers out-of-bundle rates when their bundles have run out without the consumers’ specific prior consent.

I am also aware of LCA’s plan to further instruct these two operators to put in place mechanisms that will allow users to rollover their bundles upon expiry so that consumers do not lose unused bundles as is the current practice.

These are really praiseworthy developments that have reinforced LCA’s image as an “independent authority” mandated to protect the interests of consumers of communication services.

We as a community love to argue, but there is one aspect of our lives, where we all agree without breaking out into an argument – that all people must be able to access the internet in order to exercise and enjoy their rights to freedom of expression and opinion and other fundamental human rights.

A simple search on Google leads to a Wikipedia page describing what I mentioned above as a right to internet access, also known as the right to broadband or freedom to connect.

It is a view that all people must be able to access the internet in order to exercise and enjoy their right to freedom of expression and opinion and other fundamental human rights, that states have a responsibility to ensure that internet access is broadly available, and that states may not unreasonably restrict an individual’s access to the internet.

To protect this right of access to the internet, the United Nations Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, in May 2011 submitted a report with eighty-eight recommendations on the promotion and protection of the right to freedom of expression online to the United Nations Human Rights Council.

La Rue’s recommendations explained that given that the internet has become an indispensable tool for realising a range of human rights, combating inequality, and accelerating development and human progress, ensuring universal access to the Internet should be a priority for all states.

The Special Rapporteur emphasised that each state should thus develop a concrete and effective policy, in consultation with individuals from all sections of society, including the private sector and relevant government ministries to make the internet widely available, accessible and affordable to all segments of population.

While the La Rue acknowledged that there are certain exceptional types of expression online which may be legitimately restricted under international human rights law, essentially to safeguard the rights of others. He reiterated that any limitation to the right of freedom of expression online must pass the following three-part cumulative test:

  1. It must be provided by law, which is clear and accessible to everyone (principles of predictability and transparency); and
  2. It must pursue one of the three purposes, namely, (i) to protect the rights or reputations of others, or (ii) to protect national security or of public order, or of public health or morals (principles of legitimacy); and
  3. It must be proven as necessary and the least restrictive means required to achieve purported aim (principles of necessity and proportionality).

La Rue also emphasised that any legislation restricting the right to freedom of expression online must be applied by a body which is independent of any political, commercial or other unwarranted influences in a manner that is neither arbitrary nor discriminatory, with adequate safeguards against abuse, including the possibility of challenge and remedy against its abusive application.

On 9 October 2020, nine years after La Rue submitted his report to the United Nations Human Rights Council recommending how states could control content disseminated via the internet, LCA announced its intention to promulgate Internet Broadcasting Rules of 2020, intended to make provision for regulation of internet broadcasting and content distributed over the internet.

The proposed Rules define internet broadcasting as internet posts accessible to at least one hundred (100) internet users in Lesotho, whether individually or in a series, and internet posts by users who have more than one hundred (100) followers in Lesotho.

The draft Rules will require persons who conduct internet broadcasting as defined in the draft rules, to register with the LCA and such persons will be required to comply with the broadcasting principles and standards under the Lesotho Telecommunications Authority (Broadcasting) Rules of 2004.

While one would have expected that LCA by now knows the Special Rapporteur report inside out, its proposed Internet broadcasting Rules of 2020 suggest otherwise as they are a far cry from what was suggested by La Rue.

Lesotho is currently embarking on a comprehensive and watershed reforms exercise which seeks to create Lesotho that Basotho want. This is a complex and multifaceted process of change involving all public administration components which must play an active part in it.

Despite Section 3(3) of the Communications Act of 2012 stating that in the performance of its functions, the LCA shall be independent and not be subject to control by any person or authority, Basotho have spoken in one voice to identify, rightly so, LCA as one of the institutions that need reform to enhance its independence and ensure it is sufficiently insulated from political interference.

The independence and impartiality of LCA has become central to the reform demands.

“Basotho complained about political control of the frequency spectrum distribution and usage. This challenge stems from the fact that the communications regulator, LCA, is mandated to regulate the communications sector based on the best practices, standards and dynamics in frequency spectrum distribution,” noted Tsebo Matšasa, Mzimkhulu Sithetho and Bob Wekesa in their report titled: The Lesotho National Dialogue Stabilisation Project: Media Sector reforms.

“However, what obtains practically is that the government, through the Ministry of Communications, Science & Technology usurps the authority vested in the LCA and gets involved in spectrum distribution,” Matšasa, Sithetho and Wekesa added.

They further indicated that proposal from Basotho was that LCA should be governed by “a professional board of directors elected on merit, through a fair, competitive and meritorious recruitment process”.

They said: “This is to ensure that LCA is institutionally and functionally governed by an independent and professional board, which reports directly to parliament. The practice in other jurisdictions, which is in line with international standards is that parastatals like LCA have to be insulated from state interference by act of law.

It goes without saying therefore that, as suggested by La Rue, an institution like LCA that is regarded by some sections of the population as politically biased, cannot be allowed to promulgate any legislation to control content disseminated via the internet.

It is important to defer promulgation of any legislation that could restrict the right to freedom of expression until LCA has been completely overhauled and its legitimacy enhanced.

ALSO, the media in general has also been identified by Basotho as one of the sectors that need reform to ensure professional and social accountability.

“Another issue that has been highlighted by Basotho during the in-district and diaspora consultations was that of poor professional and capacity constraints bedeviling the media sector. Basotho have felt that media practitioners and journalists are wanting in terms of good news production. This is attributed to acute skills shortages in the sector,” Matšasa, Sithetho and Wekesa also said in their report.

They said as a remedy, a proposal was that employers in the media houses should send their practioners for short-course training for sharpening of their skills while on the job.

“It is also proposed that entrants into the journalism practice should hold a minimum of a degree in journalism for the intermediate and ongoing skills development in the long-term. Furthermore, it is proposed that minimum standards for media practice have to be set, especially for cub reporters,” they said.

It is clear Basotho want reforms that will create a professional, responsible, plural and economically viable media sector.

It is surprising that LCA has decided to throw spanner in the works by proposing Internet Broadcasting Rules that will see it dishing out hundreds of thousands of broadcasting certificates to people who cannot even spell the word “broadcasting” as long as they are internet users with more than 100 followers.

If enacted into law, these proposed rules will render every Tom, Dick, and Harry a broadcaster and potentially lead to an overcrowded cut-throat industry, when LCA is clearly already struggling to regulate less than 30 radio stations and one television station.

This gives an impression that LCA is hell-bent on sabotaging and paralysing the vitally needed media reforms.

In order for this nation to succeed and thrive in implementing the reforms, collaboration is key.

When I say collaboration, I mean it on several levels – from team collaboration within state institutions, to working with other government ministries and departments, and of course most importantly, the seamless collaboration with civil society, media, private sector, academia and the technical community.

LCA’s attitude will have detrimental side effects on the media reforms that Basotho consider so vital to Lesotho’s present and future, and is sufficient to warrant immediate dismissal of the whole board.

Lesotho must make progress on these reforms and the proposed LCA (Internet Broadcasting) Rules must be withdrawn.  NW

Kananelo Boloetse is a journalist. This a submission he made to the Lesotho Communications Authority (LCA) Chief Executive Officer regarding the proposed promulgation of the LCA (Internet Broadcasting) Rules, 2020.

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