General News of Monday, 9 March 2015
Source: Daily Guide
Member of Parliament for Obuasi West, Kwaku Kwarteng, and two other persons have filed a suit at an Accra High Court seeking to put a stopper on the Interconnect Clearing House 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 being among the plaintiffs, cites the NCA and Afriwave Telecom as well as all telecom (mobile phone service) providers as the defendants.
The suit, filed on March 5, 2015 by their solicitors Sory at Law, also invites the Attorney-General as an interested party.
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 plaintiffs’ fundamental human right and freedom from interference with their communication and correspondence.”
The plaintiffs are therefore 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.”
Plaintiffs averred that on November 5 last year the NCA invited “public and stakeholder comments and input” into the setting up and implementation of 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 licences 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.”
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 the telecoms companies’ customers will now be rendered redundant.
“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.”
“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 non-mandatory business decision of each telecommunications service provider.”