A fresh tug-of-war has erupted between MTC and the industry regulator, the Communication Regulatory Authority of Namibia, in the protracted legal tussles between the two parastatals.

MTC has over the years refused to swallow Cran’s directives, hook, line and sinker.

The telecommunications giant has retained this posture, by once again refusing Cran’s directive telling operators such as MTC to discontinue capturing customers’ biometric data for the SIM card registration process.

“Cran issued a directive to all concerned operators that the mandatory capturing of biometric data will no longer be required for SIM card registration,” Cran’s CEO, Emilia Nghikembua commanded the industry last week.

While MTC is aware of Cran’s directive, it will continue capturing the data, its spokesperson Tim Ekandjo said in a statement yesterday.

According to Ekandjo, MTC is thoughtful to the notice as put ventilated by Cran, but “whilst we are in total unison with the considerations by Cran, MTC’s position is that the rationale behind its biometric as part of its “Verifi” process is an extended and enhanced tool for customer authenticity, considering increased cyber and online frauds often involving stolen identities.”

“Verifi, as part of the biometric data capturing process is done with the aim to offer additional security, which would then help tackle fraud and crime and offer customer convenience when it comes to their profiles with MTC,” Ekandjo said.

According to him, MTC is happy with the public’s response to the registration process, particularly pertaining to biometrics.

This, he said, is due to the fact that “the majority understand the security benefits that come with it”.

It is evidenced by the 1 002 032 SIM cards that MTC has so far registered.

“The position of MTC is that it will continue offering its biometric process as a condition of service to its customers,” Ekandjo stated, mincing no words in the face of the regulator.

Responding to New Era’s questions yesterday, CRAN’s spokerson Katrina Sikeni appeared unshaken by MTC’s bravado.

“Cran will take regulatory enforcement action against any operator who takes forceful capturing of mandatory biometric data from consumers for the process of SIM card registration,” Sikeni said.

She reiterated that consumers should be allowed to register their SIM cards with the required information.

“Thus, operators will only be required to collect the information as set out in the regulations, which includes, the name of the customer, his/her address of ordinary residence, and his/her Namibian ID, passport or any other official identity document issued by the government of any other country. Customers who, however, voluntarily choose to provide their biometric data are welcome to do so,” she asserted.

SIM card registration is a national initiative aimed at facilitating the investigation of crimes committed with the aid of telecommunications devices and enhancing e-commerce activities and online trading.

“There are also benefits and use cases that are directly facilitated by the registration of digital identities. Moreover, there has been an increase in the use of digital and/or online services, providing opportunities for Namibians to embrace virtual teaching and learning, mobile banking, online shopping, just to mention a few,” Sikeni said in a media dictum a few days ago.

War

This, however, is not the only battle in the longstanding battle between the two institutions.

Over the years, the regulator has lamented being financially drained due to its inability to collect the regulatory levy from providers of communication services.

“The regulatory levy is one of the key revenue streams that Cran has to enable it to regulate the industry. As a result, since the court’s ruling, we have had to scale down on the operations, scale down on some of our business plans and projects because the resources that we have cannot enable us to implement those projects or to resource the organisation in terms of more new positions, [purchase] equipment or to do more activities to regulate the industry properly,” its former CEO, Festus Mbandeka said in 2019.

The levy constituted around 60% of Cran’s revenue.

Between 2018 and 2020, Cran lost at least N$158 million through regulatory levies it could not collect.

On its part, MTC has been unrepentant, refusing to budge to Cran’s levy demands, at least in their entirety.

MTC’s top legal brain, Patience Kanalelo has maintained that Section 23 of the Communications Act needs a revisit as it gives Cran unfettered powers.

MTC has been of the view particularly that Section 23 (3) (a) which gives Cran the power to “impose different percentages or different fixed amounts providers of communication services or categories of such providers” is unreasonably discriminatory.

“There are just two critical things that need to be addressed. Firstly, the discrimination of trying to discriminate in percentages to the different licensees. We feel that is against the [fair] competition. The second issue is that Cran wants to recover its past regulatory costs on something that was already declared unconstitutional. We feel that needs to be addressed and corrected,” Kanalelo said in 2019.

This has been MTC’s legal basis against Cran’s levy wishes.

In 2018, the Supreme Court found that Section 23(2)(a) of the Communications Act, which gives the Cran the power to impose a regulatory levy on providers was unconstitutional on the grounds that it granted uncircumscribed plenary legislative powers to Cran due to the absence of guidelines.

This case was first brought before the courts by Telecom, where Kanalelo was the principal legal advisor.

After a protracted legal tussle, all eyes are now fixated on the Supreme Court judgement on whether it is MTC or Cran will have its way. 

-emumbuu@nepc.com.na