The Right2Know campaign (R2K) has released a hard-hitting report on the state of secrecy in South Africa, offering insight into the mysterious national key points of which, President Jacob Zuma’s Nkandla, is one.
In the last five years, there’s been a 54% increase in the number of national key points across the country – but we still don’t have a list of any of them, according to R2K.
Under the current National Key Points Act, the minister of police – or anyone the minister delegates the responsibility to – is allowed to declare any building in the country a national key point. This could be a school, official residence, power station, airport or factory. Once declared as such, this property is deemed so important to national security that it requires extra security, extra protection, and extra secrecy, according to R2K.
There’s a prison sentence or R10 000 fine for any person who discloses “any information” in “any manner whatsoever” about the security measures of a national key point or “any incident that occurred there,” R2K says.
SA’s most famous key point
Most South Africans probably first heard of this provision when news broke that more than R200 million in taxes were going towards upgrading security at President Jacob Zuma’s Nkandla residence in rural KwaZulu-Natal.
The Department of Public Works, which is responsible for the upgrade, has refused to release further details around this expenditure due to Nkandla being declared a national key point. Divulging more information in this vein would be a threat to state security, the state has claimed.
“Government’s attempt to use the National Key Points Act both to justify and to hide the R238 million Nkandla upgrade is just the latest and most extreme abuse of a law that has undermined democracy since its inception,” says a R2K opionion-editorial (op-ed) piece on the Act.
Ironically, the National Key Points Act is an apartheid-era security law but its use is thriving in the so-called democratic South Africa. “Drafted in 1980 in response to acts of sabotage, the Act is in every way a child of PW Botha’s securocratic regime,” says the op-ed piece by campaign members.
Due to the fact that any site can be declared a key point, seemingly on a whim, a person could break the law unwittingly by calling a protest at one or even photographing it.
R2K has used Promotion of Access to Information Act (PAIA) to call on the South African Police Service to make the full list of national key points public. While the police initially refused this application, R2K has appealed and a response is due by the end of February.
The campaign believes the public has a constitutional right to access this list. “Simply, it’s a law that undermines basic rights; at the very least we should know how widely those rights are being undermined,” the op-ed says.
South Africans may be somewhat relieved to know that the use of the Act in the Nkandla saga is not a first for presidential residences. “In 2006 the Department of Public Works used the Act to try to hush up the building of an alleged R90 million wall around then President Thabo Mbeki’s official presidential residence in Pretoria.”
In 2003 the Act was conveniently used to quell a legitimate protest when police arrested 36 transport workers demonstrating outside Cape Town International Airport, another national key point.
“Even more farcically, women’s groups protesting against gender violence in 2008 were stopped from holding a peaceful protest outside the Emperors Palace casino where noted boxer and occasional wife-beater Mike Tyson was being hosted,” the op-ed goes on to say.
“The stated grounds for refusing their right to gather was that Emperors Palace is next to OR Tambo International Airport, also a national key point.”
The Act has been used to muddy the waters in the private sector too. An example of this occurred around the petrochemical refineries in the South Durban basin, especially the Engen refinery.
“Despite many concerns about the environmental risks posed by the refinery and the toxins running through its degraded pipelines, its status as a national key point has been used to withhold information about the safety of its infrastructure and possible risks to the health of people living nearby who must breathe in the refinery’s air and use local water sources,” according to R2K.
In its initial email response to R2K following the PAIA request for the full list of national key points, the South African police’s deputy information officer Amelda Crooks said that providing R2K with access to the requested records would “impact negatively on and jeopardise the operational strategy and tactics used to ensure security at the relevant property or safety of an individual.”
Crooks’s reply “mistakenly” added the words “Property Nkandla” to the subject line of the forwarded email, according to R2K, leading it believe that its PAIA application, which hadn’t mentioned Nkandla, was denied due to the public outrage over the president’s home.
“South Africa is now a democracy, and there is no clear and present danger to national key points, yet the government still sees fit to misuse the act and misread the Promotion of Access to Information Act to keep information that should rightfully be in the public domain about national key points secret,” says Jane Duncan, Highway Africa Chair of Media and Information Society at Rhodes University and R2K member.
Not only is the list of actual national key points unclear, the criteria for classifying an institution a national key point is also vague, Duncan adds.
“This makes it very easy for government officials to prevent public scrutiny of an increasing number of institutions simply by designating them national key points, and no one can challenge their designation because the process of listing is itself secret,” she says.