Vodacom hits back

Mohloai Mpesi

No threatening letters will stop telecommunications giant Vodacom Lesotho (VCL) from requesting its subscribers to register their SIM cards as demanded by law.

VCL made this point unequivocally in a letter to advocate Fusi sehapi last week.

Sehapi had written to VCL in December last year asking the company “to cease its illegal campaign of calling me for involuntary SIM card registration and/or threat of blocking my SIM card”.

He told VCL that “I will have no alternative but to seek urgent legal advice and appropriate redress from the Superior Courts of law.”

In a response earlier last week, 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”.

Sehapi also responded to VCL’s letter on Wednesday this week.

“I presume you are operating on the presumption of regulatory (omnia praesumuntur rite esse acta) which dictates that all administrative acts are presumed to be regular and binding despite their illegality, until they are properly set aside by the court/s of competent jurisdiction,” he stated.

He said the presumption was not absolute and did not operate in favour of state or public authorities with constitutional mandate to obey and enforce the constitution horizontally in terms of section 4(2) of the Lesotho Constitution.

“Secondly, the presumption is inapplicable, where like a casu, the minister manifestly had no jurisdiction to do what he did. The act done with patent absence of power on the part of the state actor is a nullity, and no need to invoke the Court’s jurisdiction in vain to set aside what does not exist before the eyes of the law.

“The rationale is that the Court’s judgement will sit over nothing, and therefore will collapse. Be that as it may, I humbly heed your advice, and I will accordingly appeal to the LCA and minister of communications,” he said.

The Communications (Subscriber Identity Module Registration) Regulations of 2021 which Sehapi argues are illegal, were promulgated by the then minister of communications, science and technology, Sam Rapapa, in 2021.

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.

“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 added.

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.

Sehapi 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.

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 phone’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.