Tension is brewing between the National Communications Authority (NCA) and the Electronic Communications Tribunal (ECT), the body mandated to hear disputes such as the closure of radio stations by the NCA and other issues related to the enforcement of the Electronic Communications Act, 2008 (Act 775).
Per documents sighted by the Daily Graphic, the emerging strain between the NCA and the ECT is as a result of a disagreement over the budgetary allocation from the NCA to the ECT to enable the latter to carry out its mandate.
Already, the Chairman of the ECT, Professor Justice Samuel Date-Bah, a retired Justice of the Supreme Court, has tendered his resignation to the Public Services Commission (PSC).
His resignation takes effect from July 1, 2019.
The NCA, on the other hand, has filed a process at the Accra High Court to prohibit Prof. Justice Date-Bah from being part of the panel that will adjudicate on cases pending before the tribunal with hearing dates before his resignation takes effect on July 1, 2019.
In its application for judicial review in the nature of prohibition, it is the contention of the NCA that the content of Prof. Justice Date-Bah’s resignation letter raises “a strong likelihood of bias” and, therefore, he cannot continue to preside over the tribunal and hear cases pending before the tribunal even before he resigns.
“The Tribunal Chairman, having expressed such strong sentiments against the applicant (the NCA) in his resignation letter, when cases involving the applicant (the NCA) are pending before him clearly shows that he cannot be impartial in the adjudication process,” it states.
The NCA is, therefore, praying the High Court to prohibit Prof. Justice Date-Bah from presiding over the tribunal when it continues its sitting on June 24, 2019.
The tribunal is billed to hear cases filed against the NCA by XYZ Broadcasting Limited, Network Broadcasting Limited, Adunu Media Limited, Genesis Media Limited and Georichat Company Limited.
Justice Prof. Date-Bah confirmed he had indeed written to the Chairman of the Public Services Commission indicating his intention to resign as Chairman of the Electronics Communication Tribunal with effect from July 1, 2019.
He said his position has not changed but would not comment further on the issue because it was currently before the High Court.
Prof. Justice Date-Bah said he was waiting for the court’s decision on the matter to know the next line of action to take.
A source at the NCA has also confirmed the ongoing impasse but declined to comment further
Under the Electronic Communications Act, 2008 (Act 775), the NCA is supposed to pay for the expenses of the ECT, as well as the allowances of the members of the tribunal.
Section 89 (3) of Act 775 stipulates that “the expenses of the tribunal shall be paid out of income derived by the authority and shall be part of the annual budget of the authority”.
Prof. Justice Date-Bah, in his resignation letter, dated May 31, 2019 and addressed to the Chairman of the PSC, contended that the NCA had failed to release any of the approved budget for the tribunal.
According to him, although the NCA had the mandate to fund the tribunal, the power to appoint members of the tribunal and their conditions of service were vested in the PSC.
“The statutory provisions are that the Public Services Commission should consider and approve budget proposals from the tribunal relating to its operations. When approved, the NCA is obliged to provide the funds for the approved budget. However, the NCA has not released any of our approved budgets.
This is awkward.
“The statutory intent is clearly for the NCA to be the paying agency, but it is not clothed with authority to question items in the budget,” he said.
Prof. Justice Date-Bah added that in spite of the financial constraints, as a result of the NCA’s failure to release the funds, members of the tribunal had continued to discharge their duties “out of a sense of duty”.
“However, the financial constraints are now going to constrain even our ability to hear cases.
In a few cases, we have reached the stage where viva voce evidence needs to be taken, but the logistics for this have not been funded,” he said.
The retired Justice of the Supreme Court further said the financial difficulties had led to a situation where the sense of duty by the members alone could not achieve results.
“Accordingly, I wish to resign from the Chairmanship of the Electronic Communications Tribunal, in the hope that the next chairman will achieve greater success in securing the NCA’s compliance with the Electronic Communications Act, 2008.
I propose that my resignation takes effect from July 1, 2019 to give you time to appoint my replacement,” the letter added.
Prudent use of funds
The NCA, in its application before the High Court, however, rejected the assertions expressed by Prof. Justice Date-Bah and said the authority was rather ensuring prudent use of funds.
It said the NCA was carefully guided on how to disburse public funds in accordance with the Public Financial Management Act.
“That, in a letter dated October 2, 2018, the applicant wrote to the Public Services Commission to communicate the approved allowances of members of the tribunal, including the chairman.
That, notwithstanding the applicant’s clarification of the funding issues in the said October 2, 2018 letter, the chairman still harbours strong misgivings against the applicant and same are embodied in his resignation letter,” the NCA averred.
The October 2, 2018 letter by the NCA to the PSC was signed by its Board Chairman, Mr Kwaku Sakyi-Addo.
According to the letter, during a meeting on September 20, 2018, the board endorsed the decision of the previous board to pay sitting allowances to the panel members of the tribunal and a lump sum for each case concluded on appeal.
“Indeed, since the assumption of office, the board has ensured that these allowances were paid as and when they were presented,” it said.
The letter, however, indicated that the board decided that the amount in the budget for a monthly retainer for the panel members was on the high side.
“Consequently, it was agreed that for the chairman, instead of GH¢8,000 per month, GH¢4,000 is paid and GH¢3,000 for the members, instead of GHc7,000, as proposed in the budget,” it added.
The NCA further asked the PSC to explore other funding avenues for the tribunal, such as the use of the filing fees paid by parties that seek redress at the tribunal, to fund the operations of the tribunal.
“We believe these fees, which we are reliably informed are lodged in an account, could be used to cater for some of the operations of the tribunal while the NCA takes care of the allowances and other capital expenditure,” the letter added.