The National Communications Authority has issued the selected Interconnect Clearinghouse (ICH) operator, Afriwave Telecoms Ghana Limited, a provisional license pending a substantive one later on.

A letter from the NCA addressed to Afriwave Ghana Limited dated June 2, 2015 said: “The NCA hereby grants a provisional licence to AFRIWAVE TELECOM GHANA LIMITED to build and operate facilities for the provision and operation of Clearing House services in subject to certain conditions.”

The GHC4 million license was issued following the refusal of a Human Rights Court to grant an interim injunction on processes leading to the establishment of the ICH pending the determination of a substantive case in which three citizens are challenging the constitutionality, legality and necessity of the ICH.

The plaintiffs in the substantive case, Obuasi West MP Kwaku Kwarteng, Development Researcher Elijah Adanse-Bonnah and another also sought an interim injunction on any processes leading to the establishment of the ICH but the courts refused to take a decision on that.

The court, presided over by Justice Kofi Essel Mensah ruled that most of the issues raised in the interlocutory injunction application have a bearing on the substantive suit and a decision could prejudice the main suit.

He therefore deferred the ruling for full trial to commence. And the trial has still not begun due to some technical issues still being raised by the telcos, who are respondents in the case.

The two other respondents in both the main suit and the injunction application were The NCA and Afriwave.

Following the refusal to give a definite ruling on the interlocutory injunction application, the NCA and Afriwave have moved on with processes towards establishing the ICH pending the determination of the substantive case.

The NCA had already issued Afriwave with a letter confirming its selection as the ICH operator. The most recent of their steps towards the realization if the ICH is the issuance of the $4 million provisional license.

As such, Afriwave and its partners Huawei Technologies, Meucci Solutions, and others have been investing heavily in the installation of infrastructure in Accra and Kumasi, and recruitment of industry experts in preparation for the ICH.

The company recently named former Airtel Ghana Boss, Philip Sowah as its new CEO, and Adom News is reliably informed that other former top executives of some telcos (names withheld) have joined Afriwave to help set up and run the ICH.

Contempt of court

But critics have raised questions as to whether the issuance of a provisional license does not constitute contempt of court since the court is yet to decide on the legality of the ICH and the constitutionality of the work it is being set up to do.

The NCA, which issued the license, has refused to give any official explanation in public as to why it issued a license while there are legal issues around its own head over the ICH.

NCA’s Legal Director, Abena Asafo-Adjei was quoted in other media reports as saying “we will wait till the substantive case before the court is over” before continuing the ICH establishment processes, but it would appear some other people at the NCA have different ideas.

Some other industry watchers believe once there is no injunction on the processes towards establishing the ICH, nothing stops the NCA from issuing a provisional license and collecting money for it.

The license

The provisional license issued to Afriwave allows it to provide and operate ICH services using radio, cable, satellite, other technology or a combination of any systems or technologies deployed for the purpose of providing point-to-point or point-to-multipoint communication for connection to service providers for the conveyance of voice, data and video.

The letter covering the license further stated that the licencee, Afriwave, is hereby authorised to build and operate the common platform for monitoring traffic across all Service Providers.

It however stated that the provisional authorisation granted to Afriwave is subject to provisions of the Electronic Communications Act 2008 (Act 775), Electronic Communications Regulations, 2001 (L.1 1991), as well as any other relevant statutes, and any rules, directives and guidelines the NCA may issue from time to time.

The letter also stated that NCA reserves the right to issue supplementary conditions to the provisional license.