The National Key Points Act is misplaced in our democracy
ANALYSIS
The battle for the truth about Nkandla is far more significant than the recent squabble between Democratic Alliance leader Helen Zille and a group of Zuma loyalists suggests. In fact, the 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.
Drafted in 1980 in response to acts of sabotage, the Act is in every way a child of PW Botha’s securocratic regime. It gives arbitrary powers to the minister of police to declare any building or installation a key point that is vital to state security; once this is done, the constitutional rights to freedom of expression and access to information seem no longer to apply.
These fundamental rights are granted or taken away at the whim of the minister, or anyone to whom his powers are delegated. Although its draconian measures have no real place in our constitutional democracy, the Act seems to have found new friends in a new era.
Paia’d for Points
A month ago the Right2Know Campaign launched a request for information in terms of the Promotion of Access to Information Act. We asked the head of the South African Police Service, who is meant to be the guardian of this information, for a list of all the key points.
But, although the legal deadline for a response was November 4, the police have failed to provide the information. Why should the public have a list of them? Simply, it’s a law that undermines basic rights; at the very least we should know how widely those rights are being undermined. Once a site is declared a national key point, secrecy provisions come into play: there’s a jail 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”.
Any site can be named a key point, from our airports and factories to our power stations and presidential residences. This is why, for many years, activists, unionists and community groups have been calling for a public list of the key points, but the list itself is in effect a secret.
Tyrannosaurus law
Although the Act may be an apartheid dinosaur, it has continued to give private sector and government officials the opportunity to shut the public out.
In fact, Nkandla 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 the official presidential residence in Pretoria. Because public gatherings are also prohibited at key points, the Act has also been invoked to clamp down on lawful protests.
In 2003, for example, the police arrested 36 transport workers who were demonstrating outside Cape Town International Airport — a 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 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 prevent accountability in the private sector as well, and nowhere in South Africa has this experience been more bitter than for the communities surrounding the petrochemical refineries in the South Durban basin, where a years-long struggle has been waged between residents and representatives of the petrochemical industry, in particular 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.
Use and abuse
In light of this, we must see Nkandlagate as only the latest in a long history of strategic use and misuse of this apartheid-era law to undermine the public’s right to know. No threat comes to national security from knowing how R238-million in public funds was used to upgrade a private residence, just as there is no threat when airport workers hold a peaceful strike outside their workplace, or when the communities of South Durban request air quality samples from the petrochemical industry. It’s time to make this apartheid dinosaur extinct.
Vinayak Bhardwaj is advocacy co-ordinator of the M&G Centre for Investigative Journalism (amaBhungane), Bongani Mthembu is the air quality officer of the South Durban Community Environmental Alliance and both are Right2Know members. Murray Hunter is a spokesperson for the campaign.
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The M&G Centre for Investigative Journalism (amaBhungane) produced this story. All views are ours. See www.amabhungane.co.za for our stories, activities and funding sources.