The controversial ICT Policy White Paper, published last year by the Department of Telecommunications and Postal Services and approved by Cabinet in October, has been called out as potentially unconstitutional by the Free Market Foundation.

The policy introduces a number of big changes for the ICT industry, including the restructuring of regulatory bodies such as ICASA and USAASA and putting more power into the hands of the Department of Telecommunications and Postal Services. Its most controversial elements, however, arguably relate to the proposal to create a single national Wireless Open Access Network for mobile broadband and the suggestion that mobile broadband licence holders should surrender their spectrum allocations for the greater good, has been met with concern by those within the industry.

If approved by parliament, the policy will form the basis of future legislation.

Speaking at a press conference in Johannesburg this morning, executive director of lobby group the Free Market Foundation Leon Louw echoed these concerns and added that the proposals equate to a policy which doesn’t follow international norms, which are to liberalise and introduce competition into ICT markets.

He warned that the policy, if implemented, “will to do to ICT what we inherited from the Apartheid regime with Eskom. We are one of the only countries not to have competition in energy market. We are now going to try and replicate that in SA with ICT.”

After consulting with legal experts, Louw says that he believes the policy as it stands may be in breach of the South African Constitution. The two key factors that led him to this position, he says is that large sections of the Policy were introduced after the public consultation phase, and that Cabinet has approved the Policy without waiting for the Social Environmental Impact Assessment (SEIA) that it ordered and is required.

Louw says that he believes the process by which the policy has been introduced would violate sections 32 and 195 of the Constitution.

Louw was joined by Dobek Pater of Africa Analysis, who added that some aspects of the policy are good, but even they may have unforeseen consequences.

““Open access principle is in theory good,” Pater says, “Although will impact the larger operators… who will be probably be subject to open access principles.”

Open access would mean that larger telcos would have to grant access to all aspects of its network infrastructure at regulated wholesale prices. Pater warned that if these prices aren’t enough to justify investment, those operators subject to it may decide to simply pull out. He cited a similar policy in Australia that resulted in a slowdown of fibre deployment.

Pater says that many of the controversial points in the White Paper may be unnecessary, as the South African telecoms market is functioning “fairly well” and is improving. He cautioned against widespread, unproven changes to the existing regime without exploring options for improving existing programmes and institutions first.

“It could turn out to be disastrous, it could turn out to be fine. We could be leaders in the world, but that’s highly unlikely.”

Worse, he says, if existing network operators instigate legislation to stop the Policy progressing, it could slow down – rather than speed up – deployment of faster broadband services, which is one of its key aims.

Adam is the Editorial Director at htxt media. He has been writing about technology for almost two full decades now. In a previous life, he was the editor of PC Format and Digital Camera Shopper in the UK, before going on to work as a freelance journalist for seven years. His work has appeared in or on Stuff, The Guardian, Linux Format, TechRadar, Wired.co.uk, PC Gamer, Green Futures, The Journalist, The Ecologist and The Review. Adam moved to South Africa in 2012 and loves 3D printers, MakerFairs and tech hubs. He hates seafood. None of his friends remember this when cooking.