By Sanna Camara
Justice Aminata Saho-Ceesay of the High Court has dismissed petition filed by Africell, challenging national telecoms regulator’s decision to impose a fine of D5million against it since February his year.
In a ruling delivered on the 16th November, the court said it appreciates the regulator’s functions as administrative, quasi-judicial and investigative, noting that from the arguments presented before it, it is dismissing the application from Africell that aims to halt the enforcement of the fines imposed due to reasons mentioned.
“I have keenly read the briefs of arguments before me and have carefully considered the arguments proffered by both sides,” she told counsels of both parties as she handed her 22-page decision.
“Africell did not formulate any issues for determination in the conventional manner but instead has opted to argue its case along the lines of procedural impropriety, irrationality and the illegality of the actions of PURA leading to the impugned decision,” she told them.
In the matter of contention of the fines imposed by the regulator, Africell alleged a breach of rules of natural justice while PURA argued that due process was followed as laid down in the Information and Communication Act, the PURA Act, and subsidiary legislation – Enforcement Regulations 2010.
Justice Saho-Ceesay said her précis will therefore emanate from evidence before the court.
On the 7th February 2017, there was a letter from GAMTEL alleging a direct violation of the signed contract on the Gambia’s international Gateway Management. According to the said letter, this was done by Africell through the routing of all inbound and outbound (Gambia) calls.
Africell did this through a bypass, according to information provided by the Gateway manager at the time, MGI. Prior to this, there was an earlier complaint emanating from Comium (Gambia Ltd) dated 3rd February, also alleging that since a week before, africell had stopped using the Gateway through Gamtel and had commissioned own gateway.
It was further alleged that Africell was sending and receiving its own voice traffic through an international telecoms company, PCCW Global. This company prides itself in offering latest voice and data solutions to multi-national enterprises and communication service providers. It was alleged that the rates provided by PCCW Global were more competitive than GAMTEL.
As a consequence, other GSM providers and GAMTEL said they were “being harmed tremendously”. Comium even sought the intervention of PURA “in the absence of which they will be left with no other option but to reluctantly open their international gateway.”
On the 8th of February 2017, PURA wrote to GAMTEL, informing that an investigation into the matter has commenced thereby requesting further information from them. In response, GAMTEL also wrote alleging that AFRICELL had begun terminating International Voice Calls without authorization. GAMTEL too has commenced investigations in accordance with their mandate.
PURA had notified Africell that it would be duly engaged during the investigation process and under no circumstances should it continue terminating international voice calls as the act will be in contravention of the terms of its license, the court document stated.
On the same date that PURA wrote to them, Africell opted to write to the Secretary General, Office of the President, stating that it had already submitted a position paper to the Vice President about the international gateway.
Africell even gave details of a meeting at its offices (attended by VP, minister of Finance, according to our sources) where it was explained that there was an urgent need to stop the haemorraging from international voice gateway being terminated by MGI.
PURA on the converse has formulated two issues for determination in the briefs of arguments – whether an order for judicial review ought to lie against their questioned decision, or whether Africell has shown that PURA acted without or exceeded its jurisdiction, failed to comply with the rules of natural justice or acted irrationally.
“I am of the view that the précis (background) of the event leading up to the PURA decision is of significance. The parties are not ad idem (a Latin word of “meeting of the minds”) with the events leading up to the decision,” the judge added.
While Africell argued that that their actions were “a patriotic step to stop leakage, diversion and siphoning of funds.” It said it had taken upon itself to take control of its international voice traffic that was still passing through MGI until at such time that proper accountability can be done to the new Government…
Among other things, Africell also highlighted some of the contributions it made to the economic and social development of The Gambia.,” the judge summarized.
PURA in the meantime, was under pressure from Comium and GAMTEL to ensure its role of a level playing field while Africell purportedly continued to ignore instructions to abide by their terms of licensing.
In a letter dated 14th February 2017, PURA wrote to Africell, satisfied that they had acted in contravention of their license and failed to comply with PURA directives to stop terminating international voice calls.
Africell was fined D5 million and further D500,000 for failure to comply with PURA directives.. They were further notified the fine shall attract D25,000 charge per day starting from February 10th 2017, and continue as long as Africell continue to terminate calls.