The trouble with South Africa's national key points
When the National Key Points Act is revised by Parliament this year, the debate should focus on increasing ministerial accountability and clarifying the designation of key points.
Published on 12 June 2013 in
ISS Today
By
Chandré Gould
Senior Research Fellow, Justice and Violence Prevention
What’s the difference between a national key point, a strategic installation and a place of importance? And at which of these might you get a fine of up to R1 million if you take a cellphone photo of the guards at the gate and tweet it? And how would you know that you’re not allowed to do that anyway?
These are some of the questions that should be raised in the renewed public debate about the National Key Points Act. The Act is due to be reviewed and a new bill is likely to come before Parliament by March 2014. Later this month, the National Assembly will debate the issue and this will inform opinion on the contents of the bill.
The current law dates back to 1980, a time of heightened apartheid paranoia. The Act was designed to arrange (even to order) protection primarily for private establishments and facilities – secretly. The intention of this obscure piece of legislation was to enable the state to force owners of facilities that presented security risks to secure their facilities at their own cost. The Act was intended to cover privately owned places, such as fuel depots and sites of sensitive industry, but also covered state-owned installations, like power stations, that were run by entities that did not focus on security. On the other hand, facilities that were secured as part of the regular business of state departments whose primary function was security, such as prisons and military bases, did not need to be designated as ‘key points’. This is presumably why military installations are not necessarily key points. For example, it recently emerged that Waterkloof Air Force Base, the site of May’s Guptagate debacle, is not. In 2004 the authority for the law was shifted from the minister of defence to the minister of police. In 2007 an update was drafted, but not finalised, and is now being redrafted.
So, what is wrong with the National Key Points Act? The problems lie in the secrecy, lack of accountability and lack of clarity about what constitutes an offence under the Act. The minister under whose authority the Act falls has total discretion in designating places as key points, which is contrary to the principles of accountability and transparency.
In the past year, the government has used the National Key Points Act on several occasions to avoid accountability and transparency on issues of public interest. Minister of Public Works Thulas Nxesi withheld information about his department’s expenditure of more than R200 million on renovations to President Jacob Zuma’s private residence, Nkandla, stating that it was a national key point. In January, journalists from The Star photographed the fatal beating of a prisoner by warders at Groenpunt Prison. The chairman of the parliamentary Portfolio Committee on Correctional Services, Vincent Smith, berated them for breaking the law by taking photos at a national key point.
Usually, the public has no way of finding out which places are South Africa’s key points, or why they have been designated as such. The Act does not require the minister responsible to keep a record of them, although a list clearly exists because the police budget makes note of 197 national key points. The absence of a comprehensive public list means that a politician can claim that a facility is a key point – even if this is false.
The police budget hints at the contents of the list and mentions airports, oil pipelines, ports, refineries, the Union Buildings, legislatures, the Square Kilometre Array, World Cup stadiums and ministers’ homes. This indicates that the elasticity of the existing law has allowed a significant broadening of what should be designated key points, such that prisons and the private homes of politicians are now included. However, this particular list seems incomplete because prisons are not actually named – despite Smith’s claims.
This creates an absurd situation because the police could be responsible for – and allocate a portion of their budget to – securing prisons, when the security of prisons is already a core responsibility of the Department of Correctional Services. The implication is that public funds may be allocated twice to secure the same facility.
Also, the designation of politicians’ homes as key points implies that the minister believes that they are more at risk than the homes of other citizens. It also implies that he believes that the security of politicians’ residences is, as the Act states ‘so important that [their] loss, damage, disruption or immobilisation may prejudice the republic’ or he believes that their security is ‘necessary or expedient for the safety of the republic or in the public interest’. Politicians already have VIP protection and budgets for upgrading the security of their residences, within reason. Therefore, it is unclear why they should also be designated as key points. Unless the purpose is to avoid accountability for the state funds that are spent on them.
A serious flaw in the existing Act is the discretion given to the minister to declare a national key point. The minister is not required by law to reveal that he has done so, other than to the owner, or to provide reasons for his decision. He need not even report this to Parliament. This absence of accountability renders the Act contrary to democratic accountability and makes it, in all likelihood, unconstitutional.
Consider the following scenario: the current law allows the minister of police to designate his own house as a national key point. He would not be obliged to tell anyone and he could, theoretically, spend money from the special account (provided for in the Act but never set up, according to Treasury officials) to secure the property with no need for justification. Yet a journalist writing about the guards on the minister’s lawn could, theoretically, be charged for contravening the Act.
In 2007 a new draft bill, which was intended to replace the National Key Points Act, provided for three categories of places of strategic importance: national key points, strategic installations and places of importance. The criteria for these definitions were not included in the bill. The only apparent difference between them was that key points would be privately owned properties, strategic installations would be state-owned properties and places of importance would be temporary designations for public or private properties. The original Act merely defines a national key point as ‘any place or area which has under section 2 been declared a National Key Point’ and that section 2 allows the minister the power to list anything he considers ‘necessary or expedient for the safety of the republic’.
In the draft bill, it was listed as an offence to provide information on a key point, punishable by a fine of up to R1 million. But, again, the definition of what constitutes an offence is vague and the minister is not required to provide the list of key points. So the public would not even know if they were contravening the law.
On 30 May 2013, Minister of Police Nathi Mthethwa stated that the old draft bill would undergo ‘refining’ and realignment with the Constitution. He asserted that the responsible team will finish this task by the end of July, and the bill will be introduced to Parliament by the end of the financial year. MPs were due to debate the national key points issue last week, but this has been rescheduled for later this month. The debate is sorely needed and should focus on tightening accountability and defining rational, clear criteria for determining key points.
Chandré Gould, Senior Researcher, Governance, Crime and Justice Division, ISS Pretoria and Louise Flanagan, Senior Reporter, The Star
