Battle over SIM card registration rages on

Mohloai Mpesi

In another twist in the battle over mandatory SIM card registration, advocate Fusi Sehapi has written a letter to the Minister of Information, Communications, Science, Technology and Innovation, Nthati Moorosi.

Sehapi has also written Lesotho Communications Authority (LCA), a statutory body, established in June 2000, with the mandate of regulating the communications sector in Lesotho.

He is opposed to the Communications (Subscriber Identity Module Registration) Regulations of 2021 promulgated by the former minister, Tsoinyane Sam Rapapa.

The stated aim of these regulations is to curb criminal activities involving the use of mobile devices and SIM cards by anonymous users.

The process of registering SIM cards started in June last year and has to be completed within 12 months.

After June 24, 2023, all unregistered active SIM cards will be deactivated, LCA has warned.

“These regulations were promulgated by you through your predecessor, the honourable minister Tsoinyane Rapapa,” Sehapi stated in the letter to Moorosi.

“Kindly be advised that you did not have legitimate powers to limit fundamental rights via the promulgation of these Regulations as clearly stated in my correspondence with LCA and Vodacom duly served upon your good office,” he added.

Moorosi told this publication that he was out of the country when contacted for comment yesterday.

“As a corollary, I humbly beg you to intervene on my behalf and prevent Vodacom Lesotho (Pty) Ltd from enforcing these null and ineffectual Regulations against me,” Sehapi said to Moorosi.

“Kindly, respond within five days of your receipt herein. Otherwise, I will seek urgent relief in the Superior Courts of law,” he added.

Sehapi first complained about the regulations to Vodacom Lesotho in December last year.

“Kindly be informed that I am categorically opposed to this mandatory registration for amongst other reasons: (i) the registration is mandatory. In violation of the old age rule that there is an exception to every general rule,” Sehapi said in a letter to VCL.

“For even God himself, gives man a voluntary choice between what is good and what is bad, between life and death and between light and darkness. See Deuteronomy 30:15 and 30,” he said in December.

Secondly, Sehapi further said, the regulations were done beyond the enabling act – the Communications Act, No.4 of 2012.

In promulgating the impugned regulations, he reasoned, Rapapa stated that he acted pursuant to section 55 of the act.

He said nothing in section 55 of the act expressly or impliedly authorises the minister to make regulations on mandatory sim cards registration.

Section 55 states: “The Minister may, by notice published in the Gazette, and after consultation with the Authority, make regulations for the carrying into effect of the provisions of this Act.”

He said the minister acted ultra vires his legitimate powers under common law, and invalidly under the constitution as the powers, he purportedly exercised fall exclusively within the purview of the primary law-making authority namely, the parliament.

“Thus, the regulations do not exist before the eyes of the law for patent absence of jurisdiction on the part of the minister – they are null and void without more ado,” he said.

“Thirdly, my conscience and primitive instinct inform me that this soft law has no legitimate positive purpose, but is preparatory to the controversial in-person digital migration tailored at violating fundamental rights and freedoms,” he added.

He said the regulations were inclined to threatening whistleblowers and police informants and thereby promoting, instead of deterring crimes.

They were also liable to compromise freedom of investigative or watchdog journalism and anonymous public criticism of those in authority.

“Free media is the lifeblood for good governance and indispensable bedrock for constitutional democracy in the modern democratic kingdom like Lesotho founded on human rights and freedoms,” he said.

Sehapi then asked Vodacom “to cease its illegal campaign of calling me for involuntary SIM card registration and/or threat of blocking my SIM card”.

“I will have no alternative but to seek urgent legal advice and appropriate redress from the Superior Courts of law,” he added.

In a response earlier this month, VCL’s executive head of regulatory and external affairs, Tšepo Ntaopane, told Sehapi the company will not relent.

“Kindly be advised that unless the SIM registration regulations are successfully challenged, as a regulated entity, Vodacom Lesotho shall continue to implement them fully and register all its subscribers before the envisaged June deadline,” Ntaopane said.

“As such, in line with the same regulations, any subscriber who elects not to register their SIM card(s) by the deadline will have services cut off,” he added.

Ntaopane also advised that if Sehapi felt strongly about the regulations, he was free to engage the ministry of communications and/or the Lesotho Communications Authority (LCA) “who are the custodians of laws and regulations which govern the sector”.

He heeded the advice and wrote to LCA this week.

“I humbly beseech you to regulate your licensee accordingly by directing it to cease from continuing to enforce the invalid regulations against me,” he said in his letter.

“Kindly note that even that even if the courts of law may not intervene in my favour, I will never let myself be captured by surrender my private/personal information and registering my SIM Card,” he added.

He, however, indicated that he was really desperate to stay connected with his family, friends and the world.

“However, if my continued connection is conditioned on my betrayal of my inner-self, then I am afraid I am more than willing to be disconnected,” he said.

LCA’s public affairs manager, Mothepane Kotele, confirmed to this publication yesterday that the authority received Sehapi’s letter.