Digital migration deadline is illegal

By Isaac K. Ssemakadde

Switching off analogue television transmission may not have complied with requirements

For some 30 African countries, including the technologically advanced North African giants Tunisia, Morocco, Algeria and Egypt, the deadline for digital migration is 2020. But Uganda Communications Commission (UCC) has insisted and implemented the digital transition on June 17, 2015 for Kampala and surrounding areas.

According to UCC, this deadline is justifiable because Uganda is one of many African countries which committed to digital migration by June 2015 in the Geneva 2006 Agreement of the International Telecommunication Union’s Regional Telecommunication Conference.

Furthermore, UCC is mandated by Section 5(1)(i) of the Uganda Communications Act (2013) to set national standards and ensure compliance with national and international standards and obligations laid down by international communication agreements and treaties to which Uganda is a party.

However, I submit that this deadline is not only unlawful but also arbitrary and unjustifiable, and thus null and void.

Uganda is a dualist country – its domestic law does not automatically incorporate public international law.

Accordingly, the Geneva 2006 Agreement – which UCC purports to be implementing – does not have legislative effect in the local context because appropriate legislation has never been passed to transform the norms and standards laid down by that treaty into rules and regulations having legal force in Uganda.

This could easily have been achieved by invoking Section 93 of the Uganda Communications Act (2013) which empowers the ICT Minister, after consultation with UCC and with approval of Parliament, by statutory instrument to make regulations for better carrying into effect the provisions of the Act, including Section 5(1)(i) mentioned above.

Section 16 of the Interpretation Act requires every statutory instrument to be published in the Uganda Gazette before it can be enforced. Unfortunately, this was not done for the digital migration deadline being enforced by UCC from June 17. Therefore, it cannot be the basis for interfering with people’s freedom of information in this country.

At Legal Brains Trust, we urged UCC to delay the switching off of all television sets and stations that may not have complied with digital broadcasting requirements on June 17 for at least two years.

This period is necessary for the making and implementation of a digital migration law tailored to the circumstances of Uganda and its people.

As keen followers of the digital migration project, we regret to report that UCC failed to adopt an open, transparent and participatory approach to regulation of digital migration contrary to Uganda law and international best practice.

For instance, UCC did not conduct a public consultation. It did not seek the input of crucial stakeholders such as the consumers, consumer protection agencies, suppliers and sellers of digital decoders and digital signal transmitters, and proprietors of licensed TV stations, content providers, among others.

Besides the occasional radio jingle and newspaper advert, which were mainly in English and targeted at urban and sophisticated audiences, UCC did not offer sufficient public information, education and a structured campaign to raise awareness concerning the digital migration policy so as to enable the highest possible number of consumers to switch to the digital platform consensually.

On May 5, 2015 our communications chief, Marvin Saasi, submitted to UCC a dozen requests for information relating to progress of the digital migration project as at April 30, 2015, but in vain.

The silence of UCC confirmed our suspicions that UCC does not have the data to justify the switching off of noncompliant operators and subscribers on 17 June. For instance, UCC does not know the exact number and location of active TV subscribers that successfully completed the digital transition.

UCC’s refusal to answer these tough audit queries signifies its failure to effectively and efficiently monitor, inspect, supervise and regulate the digital migration project. Consequently set-top boxes were prohibitively priced until the eleventh hour. We have not yet installed enough digital signal transmitters to cover the whole country, among other blunders.

Lastly, I submit that the timing of the switch is not proper as the country is in a crucial stage of the electioneering period. Enforcement of this deadline will reduce the television subscriber base and hinder millions of citizens from following civic education and other important matters of public interest related to the forthcoming general elections, e.g. legislations, government policies, etc.

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Isaac Ssemakadde is an Advocate of the High Court of Uganda and the CEO of Legal Brains Trust, a Kampala-based human rights watchdog.