Drive to 'out' national key points gains momentum
The battle for information rights in a climate of growing secrecy is vital to ensuring South Africa’s democratic freedoms. And so, when a lengthy battle to identify the country’s 200-odd national key points finally reached the courts this week, it was no small matter.
When the Right2Know Campaign (R2K) and South African History Archive (Saha) first applied to the South African Police Service under the Promotion of Access to Information Act to release a list of all key points, it was refused.
That was two years ago. And despite the legal implications of, for example, staging protests at key points, no one can be sure where all these secret sites are.
While the two organisations continued their campaign, first by appealing to the police minister and then launching the court application that was heard in the high court in Johannesburg on Monday, the list kept growing.
R2K research indicates that, in 2007, 118 such sites had been declared under the National Key Points Act, and that the number has since increased to 199.
In 2014 alone, 17 sites were added. And, as the list keeps growing, so has the number of abuses of the apartheid-era Act, by both public and private entities.
Legislation used excessively
R2K and Saha’s founding affidavit noted the “excessive and improper reliance” on the Act – including the public works minister’s much-publicised attempts to conceal the R200-million-plus expenditure at President Jacob Zuma’s private Nkandla residence, which was declared a key point.
There have been many other such cases. This year, for example, SABC employees were threatened with surveillance if they leak information about chaotic conditions at the broadcaster, with SABC chair Ellen Tshabalala invoking the broadcaster’s status as a key point.
Journalists from the Star also had photographs of the fatal beating of a prisoner by Groenpunt Prison warders confiscated in the name of the legislation.
The Act has often been used to deprive protesters of their right of assembly. In June, for example, metro police officers in Pretoria attempted to prevent R2K from picketing at the Seriti commission on the arms deal, and earlier this month Eskom arrested a journalist for photographing the Majuba power station, both on the grounds they were key points.
Beyond these abuses, there are concerns about the sweeping powers of the police minister to declare sites key points and appoint “such persons as he may consider necessary to assist him in the performance of his functions in terms of this Act”.
Counsel for the Mail & Guardian, which joined Monday’s hearing as an amicus curiae or friend of the court, noted that the Act and its regulations can give security guards similar authority to that enjoyed by the police.
They may arrest citizens who unwittingly break the law at these secret sites – again emphasising the importance of at least knowing which sites have been declared key points.
Loose interpretation of the Act
Arguments presented at the hearing made it clear that the Act does not technically provide for the wide-ranging secrecy that has flowed from its use and abuse.
It refers only to the confidentiality about security features and not to withholding the fact that a site has been declared a key point – nor, for that matter, does it stipulate secrecy on how much was spent on the president’s home.
The preamble to the Promotion of Access to Information Act (Paia), which the organisations are using to force disclosure of the list of key points, states that “the system of government in South Africa before April 27 1994, among others, resulted in a secretive and unresponsive culture in public and private bodies which often led to an abuse of power and human rights violations”.
As in other Paia cases, a victory in the current case will be an important step in challenging the growing umbra of secrecy while entrenching a culture of accountability and responsiveness.
Judgment has been reserved; even if it goes the way of the applicants, uncomfortable questions will remain.
If the list is disclosed, the National Key Points Act’s denial of the right to protest, the criminal liabilities citizens may face, the sweeping powers of the minister and the upgraded powers of security guards all remain a threat. So does the misuse of public funds for “security upgrades” at the growing number of key points.
At its very foundation the legislation is flawed. The state machinery is increasingly using it as a shield. Rather than attempting to review the legalisation, as proposed by the police minister, the Act itself should be repealed.
*Karabo Rajuili, amaBhungane’s advocacy co-ordinator, assisted the Right2Know Campaign in this matter
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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.