Communications (Subscriber Identity Module Registration) Regulations of 2021, are illegal, advocate Fusi Sehapi has claimed.
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, Lesotho Communications Authority (LCA) has warned.
â€œEarlier this month I commented on a social media platform regarding the legality and/or otherwise of the sim card Regulations i.e. The Communications (Subscriber Identity Module Registration) Regulations, 2021 calling for blanket sim cards registration,â€ Sehapi said in a letter to Vodacom Lesotho (VCL)
In the letter dated December 22, 2022, Sehapi explained that it dawned on him that VCL was not amused by his sentiments as a few hours later, he received a call inviting him for urgent sim registration as countenanced by law.
â€œKindly 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,â€ he said.
â€œFor 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.â€
Secondly, Sehapi further said, the regulations were done beyond the enabling act â€“ the Communications Act, No.4 of 2012.
In promulgating the impugned regulations, he reasoned, the then Minister of Communications, Science and Technology, Tsoinyana 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: â€œThe 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.â€
Sehapi 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.
â€œThus, the regulations do not exist before the eyes of the law for patent absence of jurisdiction on the part of the minister â€“ they are null and void without more ado,â€ he said.
â€œThirdly, 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,â€ 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.
â€œFree 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,â€ he said.
He then sent a chilling warning to VCL.
â€œI humbly pray your good company to cease its illegal campaign of calling me for involuntary SIM card registration and/or threat of blocking my SIM card. Otherwise, I will have no alternative but to seek urgent legal advice and appropriate redress from the Superior Courts of law,â€ he said.
VCL spokesperson, Katleho Pefole, yesterday confirmed to Newsday that the company received Sehapiâ€™s letter.
Pefole however, indicated that the registration of SIM cards was made in compliance with the LCA directives.
â€œVodacom received the letter from Mr Sehapi but it was during the Christmas holidays when most of the staff members were absent for holidays,â€ he said.
â€œMost people have just arrived from the Christmas holidays and we intend to respond to Mr Sehapiâ€™s letter. According to the nature of the letter, Mr Sehapi wrote to us as a customer so we are not going to respond to this matter through the media but directly to the concerned customer,â€ he concluded.
Some countries which have similar regulations justify them as an attempt to reign in the ever-increasing incidence of crime facilitated by cellphones.
Locally, some commentators have argued that the ease with which one acquired, used, and disposed of a cellular phoneâ€™s SIM card in Lesotho, with little if any trace, provided undetected escape routes for crooks and criminals.
By assigning an identity to prepaid devices, and tracking their use, these commentators hope it will enable the police and other agencies to curtail criminal activity.