An amended section of the Communications Act, 2009 which gave the Communications Regulatory Authority of Namibia (CRAN) powers to impose any percentage they see fit for regulatory levies on providers of communication services in Namibia, has been declared unconstitutional by the High Court.
Section 23 of the Communications Act 8 of 2009 as amended by the Communications Amendment Act 9 of 2010 failed to correct the defects, which the Supreme Court detected in 2018 after the constitutionality of the regulatory levies enforced by CRAN was challenged, the court ruled on Wednesday.
In 2018, on appeal, the Supreme Court declared section 23(2)(a) of the Communications Act unconstitutional. The section deals with administrative and licensing fees.
The Supreme Court ruled it was not right for CRAN to have unchecked discretion to determine the percentage levy on a company’s turnover as the licensee will not know what percentage exceeds the legislative competence of the regulatory company.
“Without a reasonable degree of certainty, regulations made under section 23(2)(a) of the Act are fertile ground for incessant litigation. The rule of law requires that the law is ascertainable in advance so as to be predictable and allow affected persons to arrange their conduct and affairs accordingly,” said Deputy Chief Justice Petrus Damaseb at the time.
After the Supreme Court ruling, amendments were made to the Act. However, in 2020, MTC questioned the constitutionality of the amendments made to the law, claiming despite the Supreme Court’s ruling, there is no difference between the old law and the supposed amendments.
According to MTC, the amendments give CRAN an unlimited range between 0% and 100% of turnover for imposing levies and there is no maximum threshold.
Under the amended law, MTC was expected to pay N$41.19 million in levy fees to CRAN for a 24-month cycle.
High Court Judge Harold Geier said the amendments give CRAN an opportunity to increase and or introduce new levies within a 24-month cycle at any given time.
“The Legislature in its renewed attempt, has failed to delegate sufficiently circumscribed discretionary powers to CRAN and by that same token, it has not succeeded in remedying the defects exposed by the Supreme Court,” said Geier.
Furthermore, section 23 fails to pass the constitutionality muster and thus must be struck down.
Geier ordered CRAN to pay the cost of the suit.
For the suit, MTC was represented by Jeremy Gauntlett while Sisa Namandje represented CRAN.