Zakhele Mbhele of the DA replies to R2K’s Murray Hunter

I wish to respond to the opinion piece by Murray Hunter from Right2Know (R2K), “DA’s shadow bill misses key point”, published on Tuesday 3 November. I’d like to state upfront that I will only respond to the content of the article but not the public submission of R2K on the Bill, so as not to pre-empt or prejudice any future engagement I will have with that submission during envisaged deliberations of the Police portfolio committee on all public submissions on the Bill.

Just as an opening aside, Mr Hunter raises an interesting point about what the SAPS calls “strategic installations”. Because the Critical Infrastructure Bill was drafted with the explicit and sole intention of repairing the defects in the National Key Points Act, related matters of facilities and infrastructure that entail security considerations but fall outside of the National Key Points Act were not salient during the drafting process. Suffice to say however, that any strategic installations that would qualify to be declared as Critical Infrastructure according to the provisions of the Bill, would then receive that treatment.

The first major criticism of the Bill by Mr Hunter relates to the offences and penalties. The first point to be made on this is that the mere fact of potentially harsh penalties is simply intended to reflect our mindfulness in drafting the Bill about the seriousness of harm that the specified offences could have. The key point though is that detractors of the proposed penalties must remember that any convictions in terms of Clause 20 would have been the result of a court process in which sentencing by a judicial officer would take into account all relevant factors.

It’s not as if anyone found guilty of an offence in terms of the Critical Infrastructure Bill would automatically receive a R1-million fine. That is simply the maximum amount that can be levied and the imposition of a maximum fine would obviously have to be justified by the presiding judicial officer. In addition, the minimum of a 10-year jail sentence would enjoin the judge in a case being prosecuted under the Bill to give due regard to the differentiated weighting of imprisonment versus fines and thus only take the imprisonment route where warranted.

Nor is it the case that both a fine and imprisonment would ipso facto be meted out hand-in-hand in convictions based on this Bill. Such a compound sentence would be for extremely serious cases where it is warranted. It is therefore reductionist and false to claim, as he does, that the Bill “…carries a penalty of 10 to 25 years in jail and a R1 million fine.” If one trusts our judicial system, there is nothing to fear from the Bill’s offences and penalties provisions.

Further to this point, his argument that this clause effectively criminalises protest and strike action is simplistic and a red herring. The Bill only makes it an offence to disrupt a Critical Infrastructure, i.e. its functioning.

Similarly, one would have to threaten the integrity of a Critical Infrastructure and its ability to function to fall foul of the Bill; officials “feeling threatened” is an entirely irrelevant consideration to a discussion of the Bill. The fact that the National Key Point does not have such a provision is arguably a lacuna in that statute, notwithstanding its other, much bigger flaws.

The student protest outside the parliamentary precinct which he cites did not disrupt the functioning of Parliament. Even when the students breached the perimeter and got to the steps of the National Assembly building, that did not constitute a disruption of Parliament’s business and Finance Minister Nene’s Medium Term Budget Policy Statement speech did proceed uninterrupted during that episode (in fact, the SAPS confirmed during the Police portfolio committee’s meeting on 04 November that there had in fact been no violation of the National Key Points Act on 21 October because it is the National Assembly building itself that is a National Key Point, not the parliamentary precinct in general). If the students had stormed the chamber, that would have been a disruption of Parliament’s business and a different matter entirely.

Mr Hunter’s second major criticism is that “…the Bill’s transparency provisions are riddled with loopholes and contradictions” because the Minister of Police must publish the list of the Critical Infrastructure on the SAPS website, in addition to his or her quarterly reporting obligations to the National Assembly, but can withhold any information on the SAPS website list if he or she decides that the transparency will make any of those sites more vulnerable. What this argument misses is the different degrees of access to this information that the Bill provides for.

A list published on the SAPS website would allow general public access where it would not be possible to track who obtains that information. Given national security considerations in some instances, the Minister requires discretion to limit information about Critical Infrastructure which can be accessed with such ease.

However this does not mean that the Minister can conceal select information from everyone forever. The Minister’s quarterly reporting obligations to the National Assembly would ensure that such information is available to the public through Parliament and this specific channel of access would enable national security considerations to be taken into account because each instance of access could be tracked when interested parties obtain copies of the list from Parliament. This would make it far less likely for anyone with a malicious agenda to try get the full Critical Infrastructure list when this could be tracked and recorded.

This raises an obvious question: if the media accesses the Critical Infrastructure list through Parliament but then publishes the list, what’s the difference because the general public will see it anyway? The difference is that the list published on the SAPS website would detail not just the names but also categories of places and areas declared as Critical Infrastructure (as outlined in Clause 13(2)). This is a vital point from an intelligence perspective because this dimension of information would highlight which Critical Infrastructure would be more “valuable” from the perspective of anyone with a malicious agenda to threaten its security. The Minister’s unclassified report tabled in the National Assembly would not contain this dimension.

Thus only the names of each Critical Infrastructure would always come out in the end, which is precisely the point: this eventuality would compel the Minister to apply his or her mind thoroughly in taking the decision not to publish the name and category of certain Critical infrastructure on the SAPS website because the exclusion of any facilities or infrastructure from the website list would raise questions when the names become known from the unclassified report tabled in Parliament. This two-track information framework substantially narrows the space for gratuitous secrecy but still allows provision for restricted access to certain types of information about select Critical Infrastructure for reasonably justified security purposes.

I do think that Mr Hunter’s overall concern about what he calls “security politics” is valid. I have also recently expressed similar concerns about what seemed to be a securocratic approach by the SAPS to managing the student protests in the last week or so of October. But that is not a function of any one piece of legislation; it’s primarily about the government in power at a given time and particularly the paradigm of its executive. I don’t think it’s all surprising that a securocratic mindset has crept into the current ANC government’s approach to some cases of unrest or “instability”, as some would call it (just look at the Marikana massacre), when our President is an experienced securocrat himself, as a former head of the ANC’s intelligence arm during the anti-apartheid struggle.

In the end, a securocratic-minded government would manipulate any piece of legislation and deviously work around checks and balances to advance its agenda. Just because the powers of arrest of the police can be used by a repressive government to intimidate critics, opponents or dissidents, this is not a valid basis for an argument for the police not to have powers of arrest; that’s false logic. Rather it is an argument for better governance, the strengthening of constitutional democracy to constrain the abuse of state power by elites through checks and balances and, crucially, for stronger political accountability by the electorate.

South Africa’s biggest problem is not the slim chance that one could be jailed for “taking a selfie outside a National Key Point” (and I’ve explained above why such an extreme result would be very unlikely) but the fact that we could have a government that might even be willing to attempt such a line of prosecution. If anyone thinks this is a spurious concern, just ask the “Bellville Six” who were arrested on 21 October on the parliamentary grounds during student demonstrations, who were served by the Directorate for Priority Crime Investigation, aka the Hawks, with notices of intention to charge them, among other offences, with high treason. Therein, dear reader, lies our real problem.

Views expressed are not necessarily GroundUp’s.