Regulators must ensure that their processes are user-friendly, functional and accessible, otherwise what's the point?

By Koketso Moeti

When regulators fail, not only does it benefit unaccountable corporations and those behind them, but it often comes at a great cost to ordinary people. This is an essential lesson from this year’s investigative series ‘Unaccountable’, produced by Open Secrets. The non-profit organisation “exposes and builds accountability for private sector economic crimes” and does so in part by profiling corporations and private individuals implicated in economic crime but that have never been held to account. 

The lesson about the consequences of a failing regulator resonated very deeply with me. Working for an organisation that regularly engages regulators, amandla.mobi, this is something I have witnessed first-hand, the failure of regulators to live up to their mandate. And it does not only happen in extreme ways. It also happens when regulators fail in basic tasks like ensuring that those who want to lodge complaints are not faced with hurdles and difficulties when doing so.

There’s only so much corporations voluntarily do to make it easier for consumers to hold them accountable. As those in South Africa know, industries are bad at policing themselves. While the country has regulatory and consumer agencies which are supposed to protect consumers and serve as independent mechanisms for the resolution of complaints from consumers, in my experience they remain archaic and exclusionary, making it difficult for people to make use of them. 

A good example of this is the Independent Communications Authority of South Africa (ICASA) which is the communications regulator of South Africa. According to its mandate, ICASA is responsible for “protecting consumers against unfair business practices and poor-quality services” as they relate to broadcasting, postal and telecommunications services.

Before encouraging consumers to make use of the reporting systems of regulators, such as ICASA we often use them ourselves or encourage a small section of our community to make use of them so we can assess how functional and user friendly they are. Here’s what happened when amandla.mobi submitted complaints to ICASA about mobile network operators not complying with the amendments to the ‘End-User and Subscriber Service Charter Regulations’. 

After some back and forth after attempts to email the required reference numbers from a mobile network provider, as ICASA only takes complaints after attempts to fix them with a service provider, we were invited to a meeting earlier this year to engage the complaints that we had delivered. 

First we were shown a slideshow about ICASA, the laws governing it and how the process works. This was followed by the issues experienced with the complaints, the first one being that they had no addresses. It was stressed that complaints must have an address, after much discussion the head of the Complaints and Compliance Committee (CCC), Gumani Malebusha, went as far as saying that those submitting complaints “shouldn’t be afraid of giving their addresses, because only whistleblowers should have something to fear”.

The problem with this? The online complaints portal does not require a home address. And that’s not the only inconsistency between the two complaints systems. The form requires an Identity number, while it is not required online, showing that this personal information is not really necessary to accept and address a complaint. And given that people in poverty and living on low incomes – who are much more likely to be living in informality – limit their data use owing to cost, they are less likely to use the online portal.  

Personal information obligations

Over and above that, there are ethical and legal obligations for institutions to handle the personal information of their users responsibly. Institutions serving the public are not exempt from this and should in fact be leading by example. 

Despite explaining how consumers have a lawful right to privacy as a “user of electronic communications services or products” in the frequently asked questions section on their website, ICASA itself has no easily accessible privacy policy – if there is one at all. This means that for all the insistence that complaints require addresses, there’s no disclosure how the data are stored; how long and what they’re used for – like whether or not they will be provided to a third party and if so, under what circumstances. 

Surely as a public institution, ICASA should be modelling compliance with legal and ethical standards of privacy they expect from those they are regulating. The solution suggested was that moving forward, amandla.mobi should use its address for complaints that come through us.

But why should a member of the public needing the services of an institution meant to serve them be required to use an organisation’s address, especially when their contact details are provided so they can be reached should there be a need to ask them for their address and explain why it is needed?

This was not clarified.

Another problem identified during the meeting, was that the complaints did not have all the necessary information. While ICASA explains complaints procedure, the ICASA complaints form asks for a “brief description of your complaint.” Nowhere is it explained which kind of information is required in this description. 

This is not a difficult thing to do, for example, in Step 3 of its ‘lodge a complaint’ section on the website, the Competition Commission clearly outlines which information is relevant and required when lodging a complaint. Over and above that, questions asking for the relevant information could also be included in the form itself, both the online and manual ones to make it easier for people to know exactly what information is required as part of the description of the issue.  

Of course, these are not the only problems, and in fact some are not only unique to ICASA. As far back as 2012, research found that “that one of the greatest impediments to internet use is English language literacy”.  But even with this information, too many regulators only have their complaints sections available exclusively in English which is a barrier to many in a country like South Africa. 

All these issues were of course raised during the meeting, but the least arrogant response we received was the offer to train members of the amandla.mobi community in a workshop so we know how to lodge a complaint. However, as an institution with a public service mandate it should surely ring alarm bells when consumers need to be ‘workshopped’ to use a complaints system. It goes against the public interest mandate of the institution, if the process is so broken that it requires people to be trained on how to use it. A more efficient and effective way of serving consumers is ensuring that the process is as accessible and user friendly as possible – which is far more cost effective than attempting to run workshops all over the country. This was pointed out, but unfortunately, those present continued to insist on workshops.

For as long as regulators like ICASA are archaic, exclusionary and staffed with individuals who would rather run workshops than ensure the processes of the institution are accessible in the first place, the more the public interest mandate is eroded. 

All it does is serve the interests of the very corporations and individuals that it is meant to protect the public from, like mobile network operators who have for far too long gone unchecked and unaccountable.

Koketso Moeti is the executive director of amandla.mobi. This op-ed was originally published by Daily Maverick 168.