26 Jul 2007: ISS Today: South Africa: Some Perspectives On The National Key Points And Strategic Installations Bill, 2007

26 July 2007: South Africa: Some Perspectives On The National Key Points And Strategic Installations Bill, 2007

 

The South African National Editors Forum (Sanef) sternly criticised the government yesterday for what it said was an attempt to introduce a draconian apartheid-era bill that aimed to limit press freedom. MyBroadband, 24 July 2007

 

Sanef says new Bill violates Constitution
Mail & Guardian Online, 24 July 2007

 

Sanef, the Freedom of Expression Institute (FXI), the broader media and a number of political parties have all come out strongly against the new National Key Points and Strategic Installations Bill, 2007. This Bill, introduced by the Department of Safety and Security, has now been published for comment before being debated in Parliament. The Bill will, if approved, replace the current National Key Point Act of 1980, which was administered by the Department of Defence.

 

The objective of the Bill is to protect areas deemed to be of strategic interest against sabotage or other forms of attack by empowering the Minister of Safety and Security to declare them as National Key Points, Strategic Installations and Places of Importance. Once an area has been so declared the Bill gives the Minister powers to take steps that he or she may consider necessary for efficient security of such places. Any act that disrupts areas so designated or hinders the Minister or an owner in taking steps required under the Bill is an offence.

 

The FXI has expressed concerns that the anti-disclosure provisions in the Bill will prevent the media from doing its job, by barring publication of any news relating to designated National Key Points whatsoever unless such publication is authorised by the Minister. “This drastically curtails the right to report on political demonstrations, such as environmental and other protests that may occur in the vicinity of a National Key Point”.(1) Sanef claims that the media restrictions are onerous; “It is an offence for any person to furnish in any manner whatsoever any information relating to the security measures at a National Key Point or in respect of any incident that occurred there without authority. This restricts the free flow of information.”(2)

 

The Democratic Alliance considers that the Bill places an “unacceptable constraint on the public`s right to information”.(3) COSATU’s concerns are related to issues of industrial action and protest and it declares that:

 

…many of the National Key Points in South Africa are also plants or companies that may be at the centre of industrial action and general protests actions such as in 2004, when members of the South Africa Transport and Allied Workers Union went on strike at the Johannesburg and Cape Town airports over a wage dispute. It is easy to see how industrial actions like these will fall within the vague formulations of offences under the Bill. As such the Bill as it stands is unacceptable as it may be used to impede the Constitutional right of every worker to strike as well as other labour rights such the rights to assemble, to demonstrate, to picket etc.(4)

 

All these concerns are understandable and obviously need to be taken into consideration in the further debate and deliberations on the Bill before it is enacted into law. This is exactly why the draft Bill was released for comment before going to Cabinet, Parliamentary Committees and to Parliament for approval.

 

But this does not make the Bill ‘draconian’ nor does it address the fundamental reasons for this legislation. Government ultimately is responsible for ensuring both the ‘freedom and security’ of the person as stated in Section 12 of the Constitution. In considering the security of South Africans, government must take cognisance of a variety of factors and ensure the existence of relevant legislation. It is for this reason that we have Defence, Safety and Security, Intelligence, Private Security and Arms Control legislation amongst others.

 

The existence within South Africa of industries, facilities and places of strategic importance is a fact, and Government must recognise this and take responsibility in the protection thereof. The disruption, damage, sabotage and/or destruction of such industries, facilities and places could have major negative consequences in terms of loss of life, of infrastructure, of economic production, of trade, of image and prestige, of confidence and of morale. Some examples of such key installations would be oil refineries, power stations and major dams, of which the damage to which or their destruction would be catastrophic. It is reasonable, therefore, and incumbent upon Government to ensure the safety of such places through the provision of legislation and regulations. This is what the National Key Points and Strategic Installations Bill aims to do.

 

It is in this context that the Ministry for Safety and Security has reacted to the expressed concerns that the Bill was constitutionally incompatible, with the assurance that measures were required to protect key installations from crime and international terrorism and were standard if not mild by international standards. The Ministry has also assured the public that it would take full consideration of all public inputs such as those already expressed. The Ministerial spokesman stated, “This is an open, open process. We are just at the beginning".(5) He also assured the public that information about designated key points would be published in the Government Gazette.

 

It is good that the drafting and approval of legislation in South Africa, even sensitive security legislation, follows this open and participative process, and everyone in South Africa should be encouraged to engage in these exchanges in a constructive and positive manner. Simply taking snippets out of such draft legislation and being negative is not helpful.

 

For the greater part the National Key Points and Strategic Installations Bill is well drafted and addresses the fundamental issue of ensuring the safety and security of industries, facilities and places of strategic importance to South Africa and its people. It provides the criteria for the determination of such places, and provides for the conduct of a security risk evaluation by the Government Security Regulator after consultation with the owner. Thereafter the Minister`s Advisory Committee must evaluate the security risk matrix results and furnish the Minister with a recommendation on the proposed declaration of the area or place as a National Key Point, Place of Importance or Strategic Installation. The Minister may then regulate the measures and standards for the safeguarding of such a National Key Point, Place of Importance or a Strategic Installation. It has been argued that the criteria provided in the Bill are far too wide and fail to place adequate limitations on the discretion to be exercised by the Minister tasked with its implementation. This may be so, but once again the opportunity is there to improve on this through positive public inputs.

 

The Bill also provides that the Minister may make regulations in relation to National Key Points, Strategic Installations and Places of Importance with regard to the employment or the hiring of the services of security officers by their owners; the requirements to be complied with by persons serving as security officers;the content of a training course with which security officers who are employed or whose services are hired, must comply; andaccess and egress control. These powers seem quite reasonable and within the context of the object of this legislation.

 

In conclusion, the Bill is an important component in South African safety and security legislation and should be supported. Its aim is to ensure the safeguarding of installations critical to the safety and well-being of South Africa and its people. What needs to be done is to contribute to the development of this Bill in the process of consultation to ensure that the aim of the Bill is achieved within the spirit of the Bill of Rights as contained in the South African Constitution.

 

Len le Roux, Head, Defence Sector Programme, ISS Tshwane (Pretoria)