Problematic of liquidation and dissolution of companies under rwandan law: case study of Rwandatel

II. 3.3.4. Legal framework of the revocation of Rwandatel mobile license

The Law N. 44/2001 of 30/11/2001governing Telecommunications, as well as the licenses granted to Rwandatel provided for the measures to be taken in the case of breach of the law and in case of non compliance with the license obligations.

Article 14 of the Law N.44/2001 of 30/11/2001 governing telecommunication provides set of procedures to be followed for the case of non compliance with license condition as it is stated here below:

«If any natural person or organization does not comply with any condition set out in a license, the Regulatory Board issues an enforcement notice requiring that person or organization to remedy the failure within a specified period of time.

Failure to comply with paragraph (1) of this article is an offense punishable in accordance with paragraph (6) of article 15of this law.

If the natural person or organization believes its complying, or cannot comply, with any condition set out in a license for objective and transparent reasons, it makes representations to the Regulatory Board in writing within seven working days from the date of the enforcement notice. The regulatory Board reviews the matter and either confirms or withdraws the enforcement notice or gives a written waiver of compliance with the condition.»^109(*)

Paragraph 6 of Article 57 of the same Law states that:

«Any natural person or organization which contravenes an enforcement notice issued under paragraph (2) of article 14 of this law which enforcement notice has been confirmed, if that person or organization has given explanations to the Regulatory Board within the time specified in paragraph 4 of article 14 is only at the discretion of the Regulatory Board:

1. Pay a fine between 300 000 and 5 000 000RWF for each day in which that person or organization does not comply with the enforcement notice and/or;

2. Have additional conditions imposed on the license or;

3. Suffer the suspension of the telecommunications license for the period specified in a notice of suspension issued by the Regulatory Board;

4. Suffer the revocation of the telecommunication license.»^110(*)

The Regulatory Board must in first instance, issue an enforcement notice to any telecommunications network or service provider which fails to meet an quality of service criteria and specify the time within which the criteria have to be met. Continued failure to meet any service criteria specified in the enforcement notice may result in the Regulatory Board either:

-Reducing the scope of the operator's license, or;

-Reducing duration of the operator's license or;

-Suspending the provider's license.

In extreme cases, the Regulatory Board has the power to revoke the license for non-compliance with the enforcement notice.

The Regulatory Board publishes both generally and its annual report, information setting out the quality of service performance of each public telecommunications operator».

Article 28 of Telecommunication law provides about the punishment non-contribution to Universal Access Fund where it states that:

«The regulatory Board may suspend or revoke telecommunications license (including associated radio communications licenses) granted to any telecommunications operator where there is persistent failure by the operator to make properly assessed payments to the fund on the due date.

Failure by any public telecommunications operator to pay national telecommunication access fund contributions on the specified dates or not to pay them at all is regarded as a debt due to the Regulatory Board and is recovered by court order.»^111(*)

Article 46 of Rwandatel's licensed was providing for penalties in the case of non compliance of license conditions as it is stated below;

Without prejudice to any other rights they may enjoy under the License or under any legislative, regulatory or other legal text, the Regulatory Board and the Minister shall have the following rights of suspension and withdrawal.^112(*)

In accordance with Articles 5 and 22 of the Telecommunication law, the Regulatory Board shall be entitled to suspend the License in the following situations:

· When the periodic fees for continuation of the License have not been paid;

· Where there is continued failure to meet any service criteria specified in an enforcement notice issued to the defaulting Licensee.^113(*)

Basing on articles 5 and 22 of the Telecommunications law, the Regulatory Board shall be entitled to revoke the License in the following situations:

· Where the Licensee has not substantially commenced the implementation of the Licensed Network and/or the Licensed Services one year after the date of the Effective Date;

· Where the Licensee has commenced the implementation of the Licensed Network or the Licensed Network Services but is not meeting the deadlines in the License for such implementation;

· Where there is an extreme case of continued failure to meet any service criteria specified in an enforcement notice issued to the Licensee for any default in respect of its obligations.^114(*)

All these, after the report the ad hoc committee presented to the board of directors, the latter took a decision of suspending and withdrawing Rwandatel SA mobile licensing because it was convinced that Rwandatel was not meeting its obligations any more as the then situation of Rwandatel was calling for a very high attention not only of RURA, but also of other concerned parties being shareholders, Registrar General as well as any other creditors of Rwandatel.

As a number of regulation has been established by telecom law, RURA as a Regulator took the first one to take appropriate measure to address Rwandatel's situation so that no other authority such as a Minister, Registrar General or Court of Law took a decision on that issue before that the Regulator had exhausted the enforcement mechanisms provided by the law.

When I was conducting my research, I asked the head of RURA Legal Affairs Directorate and ask her the reason why they revoked the mobile license only and let the fixed lines license and she told me that they did do for the general interest as for mobile lines, the public had other alternatives because there are other companies that also sell the mobile networking and the challenge was that Rwandatel was the only operator that sell fixed line networking.

* ¹⁰⁹ Law N. 44/2001 governing of 30/11/2001 governing telecommunication Law, art. 14, OG n^o 23 bis of 01/12/2001.

* ¹¹⁰ Art.57 of the same Law.

* ¹¹¹ Law N. 44/2001 of 30/11/2007 governing telecommunication, art.28 OG N. 23 bis of 01/12/2001.

* ¹¹² Rwandatel Mobile and Fixed License, art.46.

* ¹¹³ Law N.44/2001 of 30/11/2001 governing telecommunication, art.5, OG bis of 01/12/2001.

* ¹¹⁴Ibid.