Sectoral Regulation and Competition

((First appeared in Consumer News Namibia Magazine October 2013)

The Namibia Competition Commission (NaCC) held a workshop in Windhoek on 24 September 2013 to discuss the regulation of various economic sectors in Namibia. The issue of regulation is important from and political, economic, social and technical point of view. Through the efforts of various ministries and institutions, laws and regulations have been passed and has unintentionally created overlap in some areas while leaving blank areas where regulation might be needed. There is a growing realisation that there is need for a strategy towards better regulatory design and oversight within a framework of coordination. This will lead to better regulatory governance in terms of transparency, consultation and access to information by the public.

The workshop organised by NaCC aimed at deliberating existing issues in regulation with reference to other existing regulatory bodies in the country. These regulatory bodies include:

• Bank of Namibia
• Namfisa
• Communications Regulatory Authority of Namibia
• Electricity Control Board

Each of the invited regulatory bodies gave an in-depth presentation of their own mandate, their aims and objectives and the challenges they face in regulating the sector(s) they operate in. Each entity also gave an overview of how their body interacts with the other regulators. Below are three are of those overview.

Bank of Namibia

The BoN has the power “to authorise persons to conduct business as a banking institution, to control, supervise and regulate banking institutions as to protect the interest of persons making deposits with banking institutions”. During the BoN presentation it was further highlighted that the Bank distinguishes between a banking institution and an authorised payment provider. The second is authorised to be part of the National Payment System, but not authorised to accept deposits.

Communications Regulatory Authority of Namibia (CRAN)

Cran is the body responsible for regulating the communication sector which includes telecommunication services and networks, broadcasting, postal services and the use and allocation of radio spectrum.

In Section 2 of the Communications Act the objectives are spelled out and specifically state in paragraph (k) to ensure competition and consumer protection in the telecommunications sector. CRAN has been very active in encouraging consumers to make use of the complaints procedure as laid out in the regulations to ensure the compliance by service providers on the quality and availability of their services.

Namibian Financial Institutions Supervisory Authority (Namfisa)

Namfisa is responsible for the regulation and supervision of non-banking financial institutions. These include pension funds, medical aid funds, friendly societies, long and short term insurance, investment managers, unit trusts, stock brokers and sponsors, the Stock Exchange and micro-lenders.

This function is commercialised with Namfisa (rather than a government division) to show the governments’ commitment to improve the financial soundness of the non-banking financial industry and to secure protection for all stakeholders in the industry, including consumers.

What was encouraging was the level of trust and interactivity expressed by the various regulators as to their working with other bodies. This was especially noticeable through the various Memorandum of Understandings (MoUs) signed that highlighted their desire to protect the rights of consumers across the various sectors.

Is “Good Namibian Customer Service” an oxymoron?

((First appeared in Consumer News Namibia Magazine September 2013)

The dictionary defines the word oxymoron as “a figure of speech that combines contradictory terms” for example “ground pilot”, “living dead” and “dark light”. This month I wish to add “Good Namibian Customer Service” as a term which is contradictory.

Normally I am an optimistic person to see the positive outcomes of any situation. But this past month has given me a very trying situation to deal with. Let me explain:

A friend of mine has applied for a work permit from the Ministry of Home Affairs since 2010. He applied via our Embassy in London and was told it could take three to six months. In the meanwhile, he received a standard tourism visa to visit the country to explore the options for doing his study research for his Doctorates thesis. The work he would be involved in is assisting on the farms where the research is being done. The work itself is voluntary in nature and he would receive a volunteers’ allowance. So no danger of taking employment from a Namibian and the research work would in fact create employment during the five year study period. After returning to England and waiting for the required period he contacted the Embassy who still had not got a reply from Namibia. He was advised to apply for a work visa (three months) and it would be soon forthcoming.

That was three years ago. Since then he has had to apply for multiple extensions for a work visa and all were granted till early this year. The extension was not granted and he had to return to London while a new application for a work permit was made. Apparently the original work permit application (from 2010 has been mislaid.

Once again an application was made for a work permit as well as for the work visa which would allow him to return. The work visa for three months was granted in May 2013 and he returned to finalise an agreement with the Polytechnic of Namibia and his home University to do complementary research work with students from both organisations.

In late July he again requested for clarity on his work permit as well as the extension for his work visa if the permit application was not yet complete. Imagine his surprise and dismay when he was informed that his application was lost. The supervisor admitted that he had seen the application personally – we had requested an employee to check with him upon submitting the application that the paperwork was fine. Unfortunately neither the Supervisor nor their Archives could find a copy of either application even though a file number was allocated.

So once again my friend had to complete the entire application. This is not as easy as it sounds as he had submitted the original police clearance certificates, radiological reports, etc. with the application again after the first file was lost. Luckily most of the documents had been scanned so we were able to print a reasonable facsimile and this was accepted by Home Affairs.

My question must then be to our Namibians whether they are working at government or private institutions, “Do you know that the Customer is King?” It surely does not seem that way.

Houses built in Namibia not always up to scratch

((First appeared in Consumer News Namibia Magazine September 2013)

Recently a reader contacted the Consumer News Namibia magazine to complain about the housing. Various consumers have complained about the high cost of housing, the skyrocketing of rents and generally the lack or shortage of housing. This consumer had a very different complaint and led to some in-depth investigation to understand the issues involved.

The reader states “I have recently moved into a complex that was built within the last four to five years. The previous tenants were students and therefore I accepted there were some shortcomings on the property and the landlord and I agreed to deduct the costs of renovations or replacements to the building that I may incur. Once I moved in I started realizing there were problems that were not made by tenants, but rather structural problems in the way the property was built. To name just a few:

·         The geyser outlet pipe on the first floor is directly above the back door on the ground floor. This means when the water overflows it drops directly over the backdoor leaving a pool of water. As the geyser is on the first floor, it is very difficult to get to the outlet pipe and will need a professional to fix this problem.

·         The backyard of the property has no drain at all. There are two taps for the washing machine and the washing machine outlet is there, but the additional tap in the backyard has no drain into which it flows. Further, as there is no drain, all the water has to drain out through the neighbours backyard through a very small opening. I am sure this will cause a major problem when the rainy season starts.

·         The stairway is to narrow and not high enough to pass a double bed upstairs. We had to hoist the bed over the balcony to get it into the bedroom.

I contacted the consumer and got the details of where the flat is situated and was able to get more information regarding the developers.

Neither the developers nor the builders have responded to any questions in this regard so I decided to take this up with the relevant authorities. This was not an easy task. The law that is applicable is apparently not the Namibian Standards Act of 2005 as this Act clearly states in Section 35 (3) that "Any standard building regulation which was framed and published in terms of 14bis of the Standards Act, 1962 .. and which was in force immediately before the commencement of the Act, remains in force..."

Thus the Namibian Standards Institute is not the relevant authority.

Not having access to the Standards Act of 1962, I then contacted the City of Windhoek (where the property is situated) and was informed the Occupational Health and Safety Section of the Health Services Division is involved in the registration of businesses and the approval of building plans.  The most I could confirm with the Municipality that the building complies with the regulations at the time of sale and a building compliance certificate should have been obtained if the property ownership was transferred after 19 August 2011. These new regulations were introduced by the City in an effort to bring in a control system to enforce correct and approved building plans.

As the property in question was built before this date, it might be that certain elements in the building do not comply with the regulations. If this is the case, the City of Windhoek assured me that when the owner wants to sell such a property, they will have to rectify these issues.

Unfortunately, the investigation is not able to address the reader’s complaint and find a solution. However, we would like to caution our readers who might have properties to sell, that they as the present owner would be responsible for the cost of rectifying these mistakes when the wish to sell the property.

Credit Bureau to be regulated soon

The Bank of Namibia (BoN) announced on 29 August 2013 that the proposed draft regulations to regulate credit bureaus in Namibia are now open for public consultation. The BoN states “There has been recent speculation in the media around whether or not credit bureaus are illegal in Namibia. The Bank of Namibia’s view is that the existing credit bureaus in Namibia are legal entities registered in accordance with the relevant laws by the Ministry of Trade and Industry.

That means they are not illegal. What is missing in our legal system at the moment is a specific law regulating how these entities should manage the information under their care, and there is no centralized credit information system that allows banks and other lenders to know the total exposure per client and their credit history so as to avoid overextending of consumers.”

What is a credit bureau?

A credit bureau (sometimes called consumer reporting agency or credit reference agency) is a company that collects information from various sources and provides consumer credit information on individual consumers for a variety of uses. Credit information such as a person’s previous payment of loans or accounts is a powerful tool to predict their future behavior. Through the collection of such information lenders such as banks and micro-lenders can assess credit worthiness, the client’s ability to pay back a loan. This information can also affect the interest rate and other conditions of a loan.

Present situation in Namibia

Currently Namibian credit providers are under no obligations to supply information to credit bureaus. It is against that background that the proposed regulations will seeks to establish rights and obligations of credit bureaus to be registered and licensed by the Bank of Namibia. It is also proposed by the BoN that all credit bureaus are to have a centralized system. Such a system should have the capability of calculating total credit exposure per client, and requires that all credit providers are to supply information to all credit bureaus. The Regulations also provide clear guidelines pertaining to the kind of data to be collected, the period of time information can be kept (retention period) etc.

Who are credit providers?

The Bank of Namibia has also defined who the sources of credit and non-credit information that are obliged to provide information to all credit bureaus that meet the qualifying criteria as set out in the proposed Regulations.

Credit providers

•          Commercial banks
•          Micro lenders
•          Retailers providing credit

Utilities

•          Regional Electricity Distributors (REDs)
•          Bulk water suppliers
•          Telecommunication companies

An organ of State, court or judicial officer

Information on Debt Judgments, non-payment of Maintenance or debt owed to a government department[1]

The regulations further states For the purpose of building data bases for SMEs, a credit bureau may collect and receive non-credit information from suppliers whose participation in the credit information system may be voluntary and the following categories are listed.

Local Authorities

•          Municipalities
•          Town Councils
•          Village Councils

Public Consultation Process

The Bank of Namibia is therefore inviting all stakeholders and most importantly the general public to present their input to the Bank of Namibia for consideration. The public members/stakeholders are advised to make written submissions on the entire Regulations by or before 26 September 2013.

Written submissions on the Regulations can be done on the Bank of Namibia website at www.bon.com.na, or if confidentiality is requested, comments can be emailed to ndangi.katoma@bon.com.na. Further queries pertaining to this can be directed Mr. Ndangi Katoma, Director: Strategic Communications & Financial Sector Development, telephone number 061-283 5114.

Milton Louw is a consumer activist that has been advocating the creation of a national credit bureau (with the necessary consumer protections) since 2006 in a submission to the Parliament of Namibia. He is the voluntary Director of the Namibia Consumer Protection Group and all opinions expressed in this article are his own.

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[1] Description provided by the writer and not BoN

How Government spies on you

((First appeared in Consumer News Namibia Magazine September 2013)

Many consumer around the world were not surprised to find out that governments all around the world have been spying on the people who use the Internet services provided by international companies such as Facebook, Google, Twitter to mention but a few.  Many of us believe that these requests were from governments in developed countries such as the United States of America or Britain. Consumer News Namibia Magazine decided to investigate these requests and see if there are any requests to the popular Facebook social site from within the SADC region.

International Awareness
Privacy is a fundamental human right, and is central to the maintenance of democratic societies. It is essential to human dignity and it reinforces other rights, such as freedom of expression and information, and freedom of association, and is recognised under international human rights law. Activities that restrict the right to privacy, including communications surveillance, can only be justified when they are prescribed by law, they are necessary to achieve a legitimate aim, and are proportionate to the aim pursued.

Surprisingly, two of our SADC neighbours, Botswana and South Africa have made requests to Facebook about users and their accounts. Botswana had made a total of 3 requests about 7 users, however no data was provided by the Facebook site. South Africa had made a total of 14 requests about 9 users but they too were denied any information by Facebook.

According to Facebook (https://www.facebook.com/about/government_requests ), Namibia had made no requests between the six months period of 1 January to 30 June 2013.

Looking at the newspapers over the past few weeks there has been more and more information being leaked about the interference by Governments in the private lives of their citizens.

International Consumer organisations such as Consumers International (CI) have realised for some time now there has been a need to update understandings of existing human rights law to reflect modern surveillance technologies and techniques. Nothing could demonstrate the urgency of this situation more than the revelations confirming the mass surveillance of innocent individuals around the world.

These organisations are signatories to the “International Principles on the Application of Human Rights to Communications Surveillance”

The Preamble to the principles reads:

In abbreviated form these principles are:

•          Legality: Any limitation on the right to privacy must be prescribed by law.
• 
  
•          Legitimate Aim: Laws should only permit communications surveillance by specified State authorities to achieve a legitimate aim that corresponds to a predominantly important legal interest that is necessary in a democratic society.
• 
  
•          Necessity: Laws permitting communications surveillance by the State must limit surveillance to that which is strictly and demonstrably necessary to achieve a legitimate aim.
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•          Adequacy: Any instance of communications surveillance authorised by law must be appropriate to fulfill the specific legitimate aim identified.
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•          Proportionality: Decisions about communications surveillance must be made by weighing the benefit sought to be achieved against the harm that would be caused to users' rights and to other competing interests.
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•          Competent judicial authority: Determinations related to communications surveillance must be made by a competent judicial authority that is impartial and independent.
• 
  
•          Due process: States must respect and guarantee individuals' human rights by ensuring that lawful procedures that govern any interference with human rights are properly enumerated in law, consistently practiced, and available to the general public.
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•          User notification: Individuals should be notified of a decision authorising communications surveillance with enough time and information to enable them to appeal the decision, and should have access to the materials presented in support of the application for authorisation.
• 
  
•          Transparency: States should be transparent about the use and scope of communications surveillance techniques and powers.
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•  ·         Public oversight: States should establish independent oversight mechanisms to ensure transparency and accountability of communications surveillance.
• 
  
•          Integrity of communications and systems: States should not compel service providers, or hardware or software vendors to build surveillance or monitoring capabilities into their systems, or to collect or retain information.

Namibia does not yet have a Consumer Protection Act, Electronic Transactions Act or Data Protection Act which many developing countries have already put in place. Thus one has to hope that these principles will be incorporated into the long-overdue legislation – and hopefully soon.