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Somalia - Draft Communications Act

04 April 2012

Legal analysis

On 22 March 2012, the Council of Ministers of the Transitional Federal Government of Somalia (TFG) adopted the Communications Act 2012,[1] a major piece of legislation intended to lay the groundwork for regulation of both the telecommunications industry and broadcasting sector in Somalia.

The adoption, which was unanimous, followed a drafting process managed by the Ministry of Information, Posts and Telecommunications, which benefited from input from national and international experts and a public consultation process. A central objective of the Act is the establishment of a converged regulatory body, the National Communications Commission (NCC). The Act takes a framework approach; it goes into some detail regarding the powers and procedures of the NCC, but leaves many of the substantive rules governing the telecommunications and broadcasting sectors to be elaborated in subsequent laws or regulations adopted by the NCC.

ARTICLE 19 welcomes the adoption of the Act as well the process followed in reaching this point. The TFG expressed a commitment to adhere to international standards and this intention is clearly in evidence in many parts of the Act. Particularly notable are the strong guarantees for transparency in the NCC’s operations, which set a good example for the region and indeed the world at large. At the same time, ARTICLE 19 considers that in spite of the many positive features, the Act also has a number of significant weaknesses, particularly in terms of the safeguards for the NCC’s independence. In this analysis, ARTICLE 19 provides a brief assessment of the Act, focusing on those parts relevant to the establishment and functioning of the NCC and the regulation of broadcasting.

At the same time, ARTICLE 19 regrets that the process of drafting of this important piece of legislation was conducted without broad and extensive consultations with the stakeholders in the country. It has been reported that the drafting process has not been transparent and the possibility of the stakeholders’ input and views has been extremely limited. Additionally, the draft version of the Act has allegedly not been publically available and important stakeholders have not been able to contribute to the discussion on the text of the Act. ARTICLE 19 observes that the lack of such process has led to criticism of the draft Act as such and questions of its legitimacy.

Therefore, ARTICLE 19 suggests that these issues should be addressed prior the draft Act being discussed and approved by the Parliament. Important stakeholders, such as telecommunication industry, journalists and civil society, should be consulted in this process, including those living outside of the capital, and should be given sufficient opportunity to raise their concerns and suggestions about the Act.
The ARTICLE 19’s analysis is based on international standards on freedom of expression, in particular the standards set Article 19 of the International Covenant on Civil and Political Rights, Article 9 of the African Charter on Human and Peoples’ Rights, and the Declaration of Principles on Freedom of Expression in Africa, adopted by the African Commission on Human and Peoples’ Rights.

Summary of recommendations

  • The process of finalizing the Communications Act prior to its approval in the Parliament should be inclusive and important stakeholders should be given an opportunity to comment and input to the Communication Act.
  • The Communications Act should contain a specific and explicit guarantee of the NCC’s institutional autonomy and independence, prohibiting all persons and entities from influencing the NCC in the discharge of its duties or from interfering with its activities, except as specifically permitted by the Act or legislation adopted pursuant to it.
  • The Communications Act should make the promotion of diversity and the availability of a wide range of information and ideas explicit objectives of broadcast regulation by the NCC.
  • Diversity should be defined as including pluralism of broadcasting organisations, of ownership of those organisations, and of voices, viewpoints and languages within broadcast programming as a whole.
  • The President and Council of Ministers should play no role in the selection of Commissioners. Nominations should be solicited from civil society, professional organisations or the public at large, and appointments made by a qualified majority of Parliament, after an open process allowing for public comment.
  • The NCC’s membership should, as far as possible, represent a broad cross-section of Somali society.
  • Employees of political parties, civil servants and persons who hold a position in or have significant direct or indirect financial interests in the broadcasting or telecommunications sector should not be eligible to serve on the NCC.
  • Commissioners should be limited to a maximum of two terms.
  • The Act should allow Commissioners to be removed based on loss of any of the requirements for appointment.
  • Decisions to remove a Commissioner should be subject to judicial review.
  • The NCC should be able to accept gifts, loans, grants and other contributions from outside sources only if such funding is not inconsistent with the objectives, functions and independence of the NCC.
  • The annual report which the NCC produces pursuant to Sec. 313 should be published on its website.
  • Parliamentary approval should not be required for the NCC’s budget.
  • The NCC should be made responsible for the development, following the open and participatory process established Sections 331-334 of the Act, of a frequency plan for those frequencies allocated for broadcasting. That plan should ensure that the available frequencies are shared equitably and in the public interest among the three tiers of broadcasting (public, commercial and community), the two types of broadcasters (radio and television) and broadcasters of different geographic reach (national, regional and local).
  • Decisions whether to grant a licence should be based on objective criteria set out in advance.
  • A schedule should be set out in advance establishing the duration of different types of broadcasting licences.

The presumption of licence renewal established in Sec. 606(b) should be capable of being overcome when renewal of the licence is not in the public interest.

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