DA’s shadow bill misses the key point

The DA positions itself as the party of transparency and good governance, and in the years since Nkandla became a national scandal, has often railed against the apartheid-era National Key Points Act. The party has recently tabled a private member’s Bill to replace the Act – the Protection of Critical Infrastructure Bill, an earlier version of which was tabled by Lindiwe Mazibuko in 2013. Few people noticed, since private member’s Bills usually get voted down at the first step.

But it is worth taking notice, because while the DA has framed it as a corruption-busting measure to repeal the secretive and repressive National Key Points Act, their shadow Bill is arguably cut from the same cloth, with serious implications for transparency, freedom of expression and the right to protest.

The 1980 National Key Points Act has allowed the executive, through the Minister of Police, to declare any site a “national key point”. National key points get special security standards, and new secrecy powers. They can be sites that are owned by the state, parastatals, private companies or individuals. It’s a crime, punishable with up to three years in jail, to reveal any information whatsoever “relating to the security measures” at a national key point. So publishing a photo of the fences, retaining walls and fire pool at Nkandla are, in the eyes of PW Botha’s law, an act of treason, effecting what the ANC once called the ‘privatisation of repression’.

Clearly, there are times when it is in the public interest to expose security measures at national key points. There are also many more ordinary daily public acts that are criminalized by these provisions. A great many national key points are public places; many of the ‘security features’ such as gates, fences, turnstiles, guard booths are right there in the public eye. Under the National Key Points Act, taking a selfie at the gates of Parliament – and many other public buildings across the country – is an attack on national security.

Officials have often invoked the National Key Points Act to shut down protests – although nothing in the Act explicitly empowers them to do this.

And of course, the list of national key points was secret for over three decades – only released to the public after a two-year legal battle by the South African History Archive and the Right2Know Campaign. So, you could be standing outside a national key point, breaking a law, without realizing it.

In the post-94 era, this has invited a startling array of abuses. While the DA has railed against the abuses at Nkandla, there have been countless other infringements, and the victims are often the poor and working class. This has ranged from corporate polluters refusing to release environmental data to community activists, to municipal authorities threatening protesters with arrest.

You could call this “security politics” – the framing of political dissent and accountability as a threat to security and stability. See here; these are only a few of the abuses in the past three years; many more from the early 2000s, including the Treatment Action Campaign’s protests.

Undoubtedly, we need to scrap this law – something former Police Minister Nathi Mthethwa promised back in May 2013. At least the Democratic Alliance has us talking about it. (A search of the Parliamentary Monitoring Group’s records suggests that before Nkandla members of Parliament scarcely discussed or questioned the Act at all.)

The DA’s Bill would replace the national key points with “critical infrastructure” — any site deemed to be crucial to national security. If it were enacted tomorrow, roughly 200 national key points would be brought under its powers, spanning government buildings, parastatals and the private sector. Though the Bill’s drafters do not seem to be aware of them, there are another 248 sites that the police have declared “strategic installations” which presumably would also fall under the Bill’s provisions.

The Bill introduces some important transparency around the list of ‘critical infrastructure’, but the Bill’s fatal flaw is that it reproduces the very worst parts of the National Key Points Act – the offences and penalties.

Section 20 on offences and penalties draws heavily on the 1980 Act, except the DA’s Bill is actually much more punitive. Under the 1980 Act, revealing information about a national key point’s security measures carries a maximum jail sentence of 3 years or a R10,000 fine. If the DA’s Bill became law tomorrow, it would carry a jail sentence of 10 to 25 years or a fine of up to R1 million.

Those penalties match the harshest sentences handed down in the Secrecy Bill – and just like the Secrecy Bill, there is no public interest defense. Why the drafters saw this as a good idea, they have not yet explained.

Just as bad, the DA’s shadow Bill contains a new set of offences that isn’t in the National Key Points Act, criminalising any act that “damages, endangers, disrupts or threatens” a critical infrastructure. To “disrupt” or “threaten” any institution protected by this Bill also carries a penalty of 10 to 25 years in jail and a R1 million fine.

Remember that all effective forms of protest are disruptive, albeit temporarily; some of them may even make certain officials feel ‘threatened’. This provision is a serious attack on the right to protest. The student protests two weeks ago outside Parliament would almost certainly have fallen foul of this clause; the students would be facing 10 to 25 years in jail.

This kind of provision potentially criminalises strike action at critical infrastructure too as many of the key points are industrial zones.

On these provisions alone, the Bill fails the test of openness and could easily be a tool for security politics.

The Bill’s champions will point to its more progressive proposals, particularly around transparency. For one, it proposes that parliament will receive an updated public list of critical infrastructure every financial quarter. This would be a welcome change from the climate of secrecy and obfuscation that has surrounded the national key points for decades – but the Bill’s transparency provisions are riddled with loopholes and contradictions. The Minister of Police must also publish a list of the ‘critical infrastructure’ on the SAPS website — but can withhold any information on that list whatsoever if he “decides” that the transparency will make any of those sites more vulnerable. This basically gives away the game, since for two years while R2K and SAHA fought to get the list, the Minister argued in the High Court that releasing any information to the public would be disastrous to national security. The court found no weight to those claims.

Under the DA’s Bill, the location of those sites would still be a secret – despite the fact that the court also found no compelling reason for the public not to know this information. If taking a selfie outside a national key point can put you in jail, you damned well have a right to know which locations are national key points.

The Bill also attempts to devolve power from the police minister to parliament and a nominally independent oversight board. There’s a host of other problems – a few are explored in R2K’s submission on the Bill.

As South Africa’s democracy becomes ever rowdier and more contested, security politics is likely to become a more attractive approach. This fatally flawed Bill shows how pervasive and intoxicating this kind of thinking can be. In some respects, the Bill is aggressively bad; in others, it is just muddled. Despite some positive proposals, it simply fails to break out of that security-statist paradigm.

If we hope to deepen our democracy, to shield democratic spaces from the encroachment of security politics, we need a different kind of policy imagination.

Murray Hunter is R2K’s organiser on secrecy and securitisation. See also R2K Factsheet for more information. Views expressed are not necessarily GroundUp’s.

Right2Know campaigners outside the South Gauteng High Court in November 2014. Photo courtesy of R2K.