Differences in Regulatory Regimes Said to Hamper Harmonization Efforts in Sub-Saharan Africa
Harmonizing telecom rules across sub-Saharan Africa faces several major challenges, a report last month for the ITU and European Commission found. Most information and communication technologies regulation now exists at the regional or national level, with wide variations in content and time lines and, in some cases, non-binding rules, it said. The review, part of the Harmonization of ICT Policies in sub-Saharan Africa project funded by the EU, compared the current level of regulatory standardization in various regional organizations.
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The report was presented to African Union heads of state on Jan. 31 and is expected to be discussed at the next AU ICT ministers’ meeting.
Harmonization efforts aren’t moving at the same rate in the different regional organizations, which could widen the gap between frontrunners and followers and lead to telecom market distortions at the pan-African level, the report said. Some regional groups give their member countries a good deal of wiggle room and work closely with other regional organizations, but others don’t, it said.
Other key problems are that most regulatory initiatives aren’t binding and are hard to enforce, the report said. In addition, there are major risks of conflicts of rules between some regional bodies because they share members, it said. And there are many disparities between regions on the definition and scope of their licensing, universal access/service and interconnection regimes, it said. In addition, their respective approaches to spectrum management, domain names and cybersecurity seldom jibe, it said.
The report contrasted African harmonization efforts with those of the EU and U.S. The EU revamped its telecom regime by first opening the market to competition and then liberalizing it, but those phases are hard to detect among African regional organizations which tend to mix the two, it said. Few African regional projects can be compared to the EU approach because the strategy of enacting rules via many directives covering different topics isn’t common in Africa, it said. Rather, laws seem to compete with policies and regulations instead of complementing them, it said.
The EU regime can still be variable and inconsistent because of political maneuvering by member countries, the report said. African organizations could face the same problems if they offer only a regulatory or policy approach and give national regulators, who aren’t politically independent, a wide mandate, it said.
The U.S. isn’t a regional organization but it, too, has struggled to reconcile intra-state rules, the report said. The process has been hampered by the federal nature of the U.S. system and “a tradition of deference to state utility regulators,” it said. But unlike in the U.S., Africa has no single pan-African monopoly, no judicial power with jurisdiction throughout the continent, no approach combining legal, regulatory and policy objectives, and little use of competition law to intervene in ICT matters, it said. There’s also no Department of Justice or EC to come down on telecom providers if they breach competition rules, it said.
Consultants recommended that regional organizations: (1) Adopt a common overall strategy via a single instrument. (2) Set standard principles covering technology neutrality, lowered barriers to market entry and regulatory burdens, tougher regulation for operators with significant market power and other issues through a binding, pan-African document. (3) Organize consultations and build consensus on all three levels.
(4) Develop one streamlined process for every organization. (5) Create an independent pan-African authority with enforcement powers, and an appeal mechanism. (6) Reduce regulatory discretion at the regional and national levels. (7) Enact more detailed and binding rules. (8) Develop pan-African competition law.
“This is the first time such an assessment has been done using the same methodology across Africa,” said Sami Al Basheer Al Morshid, director of the ITU Telecommunication Development Bureau. Harmonizing Africa’s approach to ICT regulation could be handled in one of two ways, he told us. There could be a long institutional debate covering all topics in parallel, or a more pragmatic approach which focuses on several key topics, he said.
The HIPSSA project chose the second option, which promises more concrete results and measurable benefits, the director said. “This is the first time all the relevant institutions active in sub-Sahara are at the same table at the same time to review the same issues,” he said. “The report, therefore, is the roadmap for the project for the coming year.”