The man giving MTC a reality check

There is a general public feeling that telecommunications giant MTC is bullying its way through the market and similarly that in some cases the whole privatisation program has not been done in accordance with strict legal procedures.

With companies operating within telecommunications sector facing increasing competition and ever-changing regulatory environment, Festus Katuna Mbandeka is laughing off perceptions that MTC is unruly and too monopolistic.

He is the Corporate Legal Adviser and Company Secretary of MTC and naturally one of the company’s top executives possessing an in-depth understanding of the sector, working closely with the top management on daily basis to keep the company running.

With the company’s 1.4 million active subscribers (customer base), MTC’s operations is among the most successful businesses in the Southern African region, if not the whole continent.

National reach, combined with extensive experience allows the company to serve clients in an industry that is ever more complex, increasing its network to almost all corners of Namibia and beyond, through roaming agreements, and subject to regulations at multiple jurisdictional levels.

Mbandeka is in the top command structure at MTC as he advises on regulatory and statutory matters, corporate governance, competition issues, service level agreements, interconnection agreements and infrastructure sharing and other commercial transactions. Another critical aspect of his job is to oversee the shareholder and stakeholder issues and relationship.

“It’s a job that requires day-to-day management of the issues. I can safely say I sit on every critical decision that the entity makes. For anyone to assume that we do not follow the law and are bullying shows lack of understanding because MTC is a corporate citizen that has been established and managed within the confines of the relevant laws and rules of this country. And by far MTC has been leading the way in the telecommunications industry in this regard.

He mantains that if MTC had not followed the law, the law could and should still take its course.

“Of course that is my daily job to see that we operate in accordance to the laws governing this country. I feel delighted that we are doing everything according to book hence MTC has been hailed one of the most successful and best managed corporate entities in the region if not beyond. I feel saddened at times by the fact that our competitors become jealous of righteousness to the extent of saying we are not acting accordingly.

Logically, anyone competing with an entity like MTC will feel monopolised; however the reality is that we are equally regulated like our competitors, if not more. The harsh reality is that, if one wants to play in the big league then one has to be strong, this is not a game for the feeble-hearted,” he says.

With the advent of new competition on the market, Mbandeka’s role has increased to include advising regulatory issues, information technology, licensing and marketing agreements.

His academic achievemnt is heavy enough to keep the legal aspect of MTC in check.\An admitted Legal Practitioner of the High Court of Namibia since 1997, holder of a B A Degree in Political Science (Honours Program) and Sociology (Concordia College, Moorhead Minnesota USA 1988-1992), LLB Degree University of Natal, Durban (1993-1995), Certificate in Contract Negotiations and Investment (International Development Law Institute Rome, Italy 1999), pending thesis for an LLM Degree (University of Namibia),

Mbandeka also advises on business expansion and strategic alliances, handling both the corporate aspects and the associated regulatory and competition aspects.

In addition, he is ideally placed to advise MTC on any restructuring, expansion, and stakeholder/shareholder relationships but also manages the litigation process and other commercial disputes and all legal challenges to regulation at all levels.

Once government’s top legal adviser and one of the key negotiators, who was instrumental in negotiating for loan and other financing facilities with international Financial institutions and Governments such as the African Development Bank, the OPEC Fund and World Bank, Mbandeka now spends his time advising and negotiating the best deals for MTC.

“This means that I have to stay in touch with the current trend in the market and be alert to new developments. And I can tell you that I still cannot grasp the daily changes of telecommunication issues and information and technology in general. It’s so dynamic and diverse,” says Mbandeka.

What he has managed to maintain consistently is his responsibility to advise, negotiate and manage commercial legal transactions of the company.

There is no doubt that the performance of such work is a severe test for the legal advisor.

“Honestly, it needs someone with a strict background of negotiation, drafting and implementing of legal agreements. MTC has experienced management and staff on top of their game, so I ought to be one step ahead all the time. Or else, will not have a job,” Mbandeka emphasises.

He says he is not only required to scrutinise and or craft a legal framework for the company’s further expansion in privatisation, but also map out the best course of actions in dealing with other players in the industry and their diverse interests.

These players include the shareholders, the regulator, competitors, suppliers and service providers as well as international partners, among others.

He adds: “in dealing with competition issues, MTC is guided by its own interests and vision taking into account the applicable legal framework and the licensing regime that regulates its operations. However, the market institutions sometimes find unexpected ways of working. Promoting competition is also desirable for MTC, but as legal advisor, I ensure there are different ways to manage competition, all we ask for is a levelled playing field, in accordance to the laws of the land.”

“We are highly regulated by the Namibia Communication Commission. The government and the regulator makes the rules and we have to follow. Nothing is done out of context. At times the rules are not always clear but one has to understand that Namibia’s communications industry is in transition. Parliament has passed a new Communications Act that completely overhauls the old regime in regulating the industry. The main purpose of that Act was not interception as the media and some segment of society opposing it, thought. The main purpose of the Act is to create a new regime that regulates broadcasting, telecommunication and postal services.

Our Managing Director (Miguel Geraldes) and myself were instrumental in providing MTC’s input to government on various issues in the Act. We also made a substantive presentation to the Parliamentary Committee and Ministry of Information and Broadcasting on the Communications Act. Of course, after our recommendations, the Act has now been passed by Parliament; we are waiting to be told when the Act will be gazetted and put into force. One may never be satisfied with the final product of the Act, but that’s water under the bridge now. Since regulation is one of my key functions, I am more than ready to assist MTC to adjust to the new statutory regime which will certainly impact on our licensing condition,” says Mbandeka.

He says the amount of time that MTC operated as the single mobile operator in the country gave room to put enough and right mechanisms in place before others could come.

“Being the first mobile operator in the country gave us the opportunity to establish ourselves in the market and prepare better for future competition and other challenges. MTC did not have a Corporate Legal Advisor till 2008. Now I am here to make sure MTC remains legally compliant and continue to play a leading role in the telecommunications sector.”

Mbandeka has over 14 years experience in the legal environment, first as a private legal practitioner for 3 years at Andreas Vaatz Attorneys and Metcalfe and Shikongo Legal Practitioners respectively, then later as legal advisor in the Office of the Attorney General for 10 years of which 6 years he was Namibia’s Chief Legal Advisor.

MTC’s Corporate Legal Advisor notes that the company will need to boost its legal capacity in future because as the business is growing and the regulatory environment changes more challenges will come to the fore.

A deputy Chairperson of the Namibia Diamond Trading Company (NDTC), a 50/50 joint venture entity owned by government and De Beers, Mbandeka has also served in various capacities both in private and public sector.

He is still serving by Cabinet appointment as a member of the technical Government Negotiating (Committee) Team with De Beers on diamond affairs since 2006; served as a member of the Presidential Commission of Inquiry into the Affairs of the infamous AMCOM and Development Brigade Corporation (DBC) in 2004; served as member of the Ministerial Team negotiating several Bilateral Investment and Protection Treaties with various countries; served as Head of the Namibian Technical team that negotiated the Extradition Treaty and Mutual Legal Assistance with China and Angola respectively,

His reputation streams back to the time when he represented the Government at various regional and international meetings on the negotiations of multilateral agreements; served as member of Government negotiating team on procurement of goods and services for among others, the construction of the Heroes Acres and the New State House.

Mbandeka was one of the legal advisors and member of the Government Negotiating Team with Millennium Challenge Corporation (USA-Government agency) for a N$3 billion grant facility to Namibia.

“I received the call that I got the job at MTC while I was in Washington finishing off the MCC deal in mid 2008,” he recalls.

It is after all these experiences at the apex of government, as Chief legal adviser that he found the job at MTC, “Fascinating, as it has required me to show some of my personal skills such as being practical, fair, forward looking but very cautious in every decision made.”

He recalls how in 2003, he left for Europe with Permanent Secretary of the Ministry of Trade, Andrew Ndishishi and other senior officials for a month where they visited various European countries, Belgium, Netherlands, Spain and Italy included, to seal off deals on the Investment Protection Treaty, a process that had been iced since independence.

But it is his rise to be the Chief Legal Advisor of Namibia, which is a marvel. However, before joining government he was assigned to open up a branch for law firm Metcalfe and Shikongo in Ondangwa in 1997, Mbandeka had completed his mission when he decided to join the Attorney General’s office as Junior Legal Adviser in 1998.

“My plan was to stay in government for about seven years and then move on to other areas.”

But things moved so fast for this Onamulunga born 43 year old.

Soon, he was promoted to Senior Legal Adviser, and then a couple of years later offered the position of Principal Legal Adviser. By the seventh year of his intended plan to leave government, Mbandeka was promoted to Chief Legal Adviser, a title which literally made him the government of Namibia’s top legal advisor.

“I could not just leave at that stage. By that time, I had a lot on my hands. I had to advise not only government, but parastatals and other agencies. Government is the biggest client anyone can ever have. I had to oversee any legal documents and deals and negotiations from a legal perspective. I was now in the Presidential Commission of Enquiries created to investigate parastatals starting with the ill-fated DBC. I was in the Government Negotiating Team tasked to look into the diamond industry. It was that team that founded the NDTC which is a joint ownership of government and De Beers. We had taken over the functions of Valco and Prime Trading, which had been a De Beers arm doing all the diamond sorting, valuing, selling all of Namdeb production. Now with the NDTC, where I am still a deputy board chair; Namibia has a 50/50 ownership with De Beers.”

Having negotiated for government at the highest level, there is nothing tougher for Mbandeka. He is still called on adhoc basis by other government institutions he has represented before.

A product of Oshigambo High School education, the conveyor belt of education to Namibia’s elites such as Prime Minister Angula, Safety and Security Minister Mbumba and Justice Minister Pendukeni Iivula-Ithana, Shihaleni Ndjaba (NDTC-CEO), ACC Director Paulus Noa, as well as Nampost CEO, Festus Hangula, just to name but a few, Mbandeka has been committed and focused in his endeavours..

Upon matriculating in 1986, he received scholarships from The Rossing Foundation and the Council of Churches in Namibia, but could not utilise them because of various reasons under the then apartheid regime.

It was only until 1988 that he managed to go to the United States under a scholarship from the Lutheran Church.

Upon returning in 1992, Mbandeka recalls how strange it was to meet 3 of the 4 of his returnee siblings he had never seen in many years because of the war, like his elder brother Brigadier Mbandeka, now adviser to President Pohamba.

Difficulties in getting employment in the new independent Namibia set up after his return from the USA, saw him further his studies, getting admitted at University of Natal in 1993 to study law.

“South Africa was going through a historic change at the time. At Natal, we were together with Namibians Patrick Kauta and Kamuhanga, (both senior partners at Dr.Wedder, Kauta and Kamuhanga Inc), Dr. Charles Karamata (now a private medical Dr) and John Khieseb (Head of Gynaecology Department at Central Hospital), Ernest Liwaniso (GM HR at GIPF). Namibians were quiet instrumental at universities in a volatile South Africa at the time. I remember, Dr. Karamata was a member of the University Housing Committee and Head of one of the Residence; Dr. Jan Keiser became the President of the SRC at Medical School, while Kauta and myself were members of the Law Student Council. I later became President of that Council.

We managed to negotiate various concessions from university management namely student representation in the Faculty Board and staff recruitment committee in which Kauta and myself served as members. Our approach to dealing with some of the burning issues ensured that Natal did not burn while other universities across South Africa were in turmoil.

“While at Natal, I got involved with a research project to collect information on the former ANC ex-combatants after their demobilisation. I was further involved with the voters education under the auspices of the Independent Electoral Commission, a body that was established to run South Africa’s democratic elections.”

The youngest in a family of nine, and married to Elizabeth, an ophthalmic nurse, Mbandeka is a family man with 2 daughters and one son, and remains optimistic that he will continue to shine his star brighter with MTC.PF