In its court papers, the Lesotho Communications Authority (LCA) argues that you were unprocedurally awarded the contract for the supply of a Compliance Monitoring and Revenue Assurance system by the former LCA chief executive officer, Mamarame Matela.
Among other things, Ms. Matela is accused of allowing you to submit your tender bid electronically in violation of LCA procedures which require that such bids be submitted physically.
What is your response to this?
In 2020, when participating in the LCA’s tender for a Compliance Monitoring and Revenue Assurance Tool, GVG strictly followed all the procedures prescribed by the procurement entity, including the option to submit electronically. Indeed, in April 2020, the LCA itself issued an amendment allowing ALL bidders to use this method due to the lockdown resulting from the prevailing Covid-19 pandemic. Regardless of the pre-Covid procedures, many other regulators in Africa had to offer this option under these circumstances.
Did you conduct any feasibility study for this project in Lesotho?
GVG has successfully implemented similar platforms in other African countries where infrastructures and existing conditions are comparable to what we can find in Lesotho. As we always do, we conducted studies considering the characteristics and peculiarities of the local telecom market to adapt our solution to Lesotho. Thorough technical due diligence has been done during the first steps.
Were you aware that there are no laws in Lesotho to support the implementation of your system?
The system has been commissioned in accordance with the Communications Act of 2012. As we can read on the LCA’s site, regulations are delegated legislation that is made by the Minister responsible for the administration of the Act while the rules can be made by the Authority, that is the LCA itself, as prescribed by the Act. Of course, there’s nothing in these laws and regulations that allows the LCA to have access to the content of the conversations and spy on the subscribers. And indeed, there’s absolutely nothing in our system that enables such listening and spying. That was not within the scope of the tender that only required a system monitoring regulatory compliance and providing revenue assurance tools.
If you are aware, why would you want to seek the implementation of a tender that is patently illegal, one that would enable the LCA to engage in the wholesale violation of mobile subscribers’ rights?
On the contrary, the system is about protecting subscribers’ rights by fighting frauds that affect them and ensuring that telecom services comply with regulations that were established in their best interest. As we already stated, the spying allegations are totally false.
Which countries have you implemented this system? Which countries have you also agreed deals to implement the system?
Since 2007, different versions of this system have been implemented by GVG in Togo, Guinea-Conakry, Central African Republic, Senegal, Congo-Brazzaville, Uganda, Rwanda, Gabon, Ghana, Zimbabwe, Liberia, and Tanzania. Our contract with LCA provided for the implementation of its most recent version. We pioneered this digital approach of telecom regulation in Africa, which earned us the Frost & Sullivan Best Practices Award and, just last year, the title of “Technology Company of the Year” by Africa Tech Week, among many other recognitions.
Would you say the benefits of the system outweigh its dangerous consequences, namely, enabling governments and communication authorities unfettered access to citizens’ information, data and private communications?
There’s no such ‘dangerous consequences’ with our system or any other similar system when used in strict compliance with the existing legal framework governing data protection and privacy. The real danger, in our increasingly digital world, is to have a telecom regulator who still regulates based on voluntary statements, partial reports and simple Excel files provided by the regulated industry. The digital gap between this regulator and the telecom providers must be addressed to make regulation effective in the best interest of the industry itself and the subscribers in Lesotho.
There are also allegations that former Communications Minister Keketso Sello demanded a M3 million bribe from you to approve the tender and sign the enabling gazette for implementation. How true is this? Were you ever approached for such a bribe?
GVG strongly denies these allegations. In all the countries where we operate, we strictly adhere to anti-bribery rules and all other laws and regulations governing procurement.
We understand that you argue that any dispute between yourselves and the LCA cannot be resolved in the courts of Lesotho. You argue that a dispute has to go for arbitration outside Lesotho because that is what you agreed in the Master Service Agreement. But the fact of the matter is that the LCA is challenging the validity of the agreement in the first place. Why then should it not be heard in the Lesotho High Court when the LCA’s argument is that the tender award is unprocedural and illegal to begin with?
Regarding contractual disputes between a provider and a client from two different countries, it is the most common practice to jointly agree on the designation of an international arbitration chamber for the resolution of disputes. This is the case of this contract, which is subject to international arbitration for the resolution of all disputes arising in connection to it. Both parties agreed on that by signing the contract, and the arbitration clause prevails, according to all international treaties signed by most of the countries of the world, including the Kingdom of Lesotho. Even the validity of the agreement has to be resolved according to the arbitration clause.
Secondly, the tender in question is supposed to be implemented in Lesotho. Surely it stands to reason that the Lesotho High Court has jurisdiction over all matters in Lesotho? Isn’t that the case in your view?
The tender culminated with the signature of an agreement which includes an arbitration clause, which has to be respected according to all international treaties and regulations which have been signed and ratified by the Kingdom of Lesotho.
This interview was published in the print version of the Lesotho Times on 20-26 October 2022.