Posted
on: www.dailyguideghana.com
By
William Yaw Owusu
Monday,
March 09, 2015
The government’s decision to set up an Interconnect
Clearing House (ICH) for the
telecommunications sector is meeting fierce resistance from the public
particularly players in the industry, as a Member of Parliament runs to court
to stop the process.
There have been a number of agitations following the National
Communications Authority (NCA’s) hurriedly-arranged ICH programme which had
little stakeholder input and the fact that the NCA has decided to contract Afriwave Telecom
Ghana Ltd as a mandatory ICH for all telecommunications service subscribers in
Ghana effective May, 2015, has raised eyebrows.
The government, through the NCA, is claiming that some telecommunication companies
(Telcos) are involved in scams and also underpaying revenue due the government
and as a result, said it was in the process of establishing an ICH that would
require Telcos and International Carriers to connect their gateways via a
clearing house.
Some have
argued that the ICH is a means to tap into people’s privacy by listening to
calls.
Court
Action
MP for Obuasi West, Kwaku Kwarteng and two
others have filed a suit at an Accra High Court seeking to put a stopper on the
whole ICH programme until all issues are put right.
The suit which has
one Elijah Adansi-Bonah, a subscriber to the telecommunications services and
Development Data, a policy research and advocacy institution as part of the
plaintiffs cites the NCA and Afriwave Telecom Ghana Ltd as well as all telecoms
service (mobile phone service) providers as the defendants.
The suit filed on
March 5, 2015 by their solicitors Sory @ Law, also invites the Attorney-General
as an interested party.
Reliefs
The plaintiffs want a
declaration that the NCA’s decision to constitute Afriwave Telecom Ghana Ltd as
all the telecoms companies for the ICH programme is “unlawful, unreasonable and
in breach” of the authority’s “constitutional obligation” to the plaintiffs “to
act fairly, reasonably and in accordance with law.”
They want another
declaration that the NCA’s decision to constitute Afriwave Telecom Ghana Ltd as
all the telecoms companies for the ICH programme “unjustifiably interferes with
Plaintiffs' fundamental human right to freedom from interference with their communication
and correspondence,” or in the alternative,
a declaration that the action of the regulator “has the likelihood of
interfering unjustifiably with Plaintiff s fundamental human right and freedom
from interference with their communication and correspondence.”
The plaintiffs
therefore are seeking an “order of perpetual injunction restraining the defendants
from implementing and or executing” the NCA’s decision to constitute Afriwave
Telecom Ghana Ltd “as a mandatory Interconnect Clearing House for all telecommunications
service subscribers in Ghana.”
Plaintiff’s claim
Plaintiffs averred
that on November 5, last year the NCA invited “public and stakeholder comments
and input” into the setting up and implementing the ICH and the input was to be
done on or before November 19, 2014.
Plaintiffs said that
on November 26, 2014, the NCA invited applications for licenses to operate the
said ICH with the application deadline fixed for December 10, 2014 which was “eleven
(11) business days from the date of publication of the notice (26/11/14) for
applications to operate the Interconnect Clearing House.”
The plaintiffs said the
effect of the NCA’s invitation for applications to operate the Interconnect
Clearing House was that, “between the period 19/11/14 and 26/11/14, that is
about five (5) days after 1st Defendant invited and received public and
stakeholder comments on 1st Defendant’s decision to establish an ICH had
ostensibly reviewed all the comments it received from the public and
stakeholders on the feasibility, legality and/or propriety or otherwise of the
decision to create the ICH.”
Afriwave Appointment
According to the plaintiffs
the NCA proceeded to appoint Afriwave Telecom Ghana Ltd as the ICH operator and
tasked the company “with the responsibility of inter connecting telephone calls
and data services
provided by and for and on behalf of” the telecoms companies.
They averred that as
the ICH for the telecoms companies therefore, Afriwave Telecom Ghana Ltd “assumes
the responsibility of interconnecting all telephone calls and data services now
directly provided by” telecoms companies to its customers including the plaintiffs
“with the effect that the direct connectivity advantages that availed” all of the
telecoms companies’ customers will now be rendered redundant.
Enabling Statutes
“In terms of its
enabling statute, the 1st Defendant (NCA) has no power to appoint a third party
such as 2nd Defendant (Afriwave Telecom Ghana Ltd) and impose its interconnect
services on 3rd to 8th Defendants (Telecoms companies) the imposition of the
interconnect services of 2nd Defendant on 3rd to 8th Defendants being unlawful
and unreasonable, irrational and contrary to law.”
According to the
plaintiffs, by law, telecommunications service providers in terms of their
respective licences, “are required to interconnect with one another.”
“The purpose and
effect of such interconnectivity is that subscribers of one network are able to
communicate seamlessly with subscribers of other works thereby facilitating
communication between network subscribers and operators especially in emergency
situations and in the national interest.”
Right to free speech
“Since their right to
and freedom from interference with their correspondence and communication is
constitutionally guaranteed, 2nd Defendant can only lawfully transmit the
content of their voice and data communication, with their express consent.”
They also averred
that if the NCA finds the need to appoint Afriwave Telecom Ghana Ltd to support
telecommunications service providers who have difficulty satisfying their
interconnect obligations, “then the subscription to those interconnect services
ought to be done as an optional non-mandatory business decision of each
telecommunications service provider.”
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