The Union Buildings in Pretoria. File photo: Oupa Mokoena

Johannesburg - Quick, what’s the difference between a national key point, a strategic installation and a place of importance? And which one can get you a fine of up to R1 million if you take a cellphone photo of the guards at the gate and tweet it? And how would you know you’re not allowed to do it anyway?

These are some of the questions that should be raised in the renewed public debate about the National Key Points Act. The act is due to be reviewed, and a revamped bill is likely to come before Parliament by the end of March.

Later this month the National Assembly will debate the issue of national key points, a debate that’s expected to inform opinion on how the bill should look.

The current law dates from 1980, the era of heightened apartheid paranoia. Similar laws were promulgated in all four “independent” homelands a few years later. It’s a law designed to arrange – even to order – protection primarily for private installations, and to do it in secret.

The intention was to allow the state to force owners of facilities that presented security risks to secure their facilities at their own cost. Privately owned places such as fuel depots and sensitive industries would presumably fit the bill; it also covered installations like power stations run by state-owned entities which weren’t focused on security.

On the other hand, facilities that would otherwise be secured by the state as part of the regular business of state departments with a focus on security, such as prisons and military bases, would presumably not need to be designated “key points” in order to be secured.

This is presumably why military installations are not necessarily key points – for example, it recently emerged that Waterkloof Air Force Base is not.

In 2004 the authority for the law moved from the Minister of Defence to the Minister of Police and in 2007, an update to the law was drafted but wasn’t ever finished. This is what is now being redrafted.

So what’s wrong with the National Key Points Act?

It’s the secrecy, lack of accountability and lack of clarity about what constitutes an offence that causes the problems.

The minister under whose authority the law falls has total discretion to decide which places should be designated key points – something that is contrary to the requirements of accountability and transparency.

The key points law has been used on several occasions over the past year by the government to avoid accountability and transparency about issues of public interest. Minister of Public Works Thulas Nxesi withheld information about his department’s expenditure of more than R200m on renovations to President Jacob Zuma’s private Nkandla residence, saying it was a national key point.

When journalists at The Star photographed the fatal beating of a prisoner by warders at Groenpunt prison in January, the chairman of the National Assembly committee on correctional services, Vincent Smith, criticised the journalists for breaking the law by taking photos at a national key point.

While some key points may be obvious, usually the public has no way of knowing what’s a key point or why. The law doesn’t require the minister to keep a record of key points, although some sort of list clearly exists, as the police budget notes that there are 197 national key points.

The absence of a comprehensive list means that there is nothing to stop a politician claiming a facility is a key point – even if it isn’t. There is simply no way to check. Although the law does not require the list to be kept secret, the minister of police refuses to release it.

Mentions in the police budget gives hints at what’s on the list – airports, oil pipelines, ports, refineries, the Union Buildings, legislatures, the Square Kilometre Array, World Cup stadiums and ministers’ homes are mentioned – and indicate that the elasticity of the existing law has allowed a significant broadening of what should be designated key points, so that now prisons and the private homes of politicians are included.

However, this list seems far from complete since prisons do not appear on the list, despite Smith, having claimed that they are.

This creates an absurd situation where the police may become responsible, and allocate a portion of their budget, to secure for example, prisons, when the security of prisons is already a core responsibility of the Department of Correctional Services.

In other words, it implies that public funds could be allocated twice, through two departments, to secure the same facility.

Just as absurdly, the designation of the private homes of politicians as key points implies that the minister believes that politicians’ homes are more at risk than the homes of any other citizens.

It also means that he believes that the security of the private residences of politicians is “so important that (their) loss, damage, disruption or immobilisation may prejudice the republic” or he believes that their security is “necessary or expedient for the safety of the republic or in the public interest”.

As politicians already have VIP protection and budgets for upgrading the security of their residences within reason, it is far from clear why they should also be declared key points, perhaps other than to prevent accountability for the state funds that are spent on them.

One of the most important flaws in the existing law is broad discretion given to the minister to declare any place a national key point. The minister is not required by the law to tell anyone, other than the owner, that he has done so, or to provide reasons for his decision. He does not even have to account for this to Parliament.

It is this absence of accountability for the decision to declare places national key points and any related spending of public funds on key points that means that the act is contrary to democratic accountability and in all likelihood unconstitutional.

Consider this: the current law allows the minister of police to decide that his own house is a national key point. He would be obliged to tell no one, other than himself, that he had declared it a key point, and could theoretically go about spending money from the special account (provided for in the act but never set up, according to Treasury officials) to secure the property without having to justify this. A journalist writing about the guards standing on his lawn could theoretically be charged for contravening the act.

In 2007 a new draft bill intended to replace the National Key Points Act provided for three categories of places: national key points, strategic installations, and places of importance.

The criteria for defining each of these were absent from the bill, with the only apparent difference between them being that key points would be privately owned properties, strategic installations would be state-owned properties, and places of importance would be a temporary designation for either public or private property.

The original act doesn’t help with definitions – a national key point is “any place or area which has under section 2 been declared a national key point”; section 2 allows the minister wide powers to list anything he considers “necessary or expedient for the safety of the republic”.

In this bill, it’s listed as an offence, punishable by a fine of up to R1m, to furnish information on a key point. But, again, what constitutes an offence in relation to these places is vague and broad and the minister was not required to make the list of places public. It is therefore not possible for people to know when they are contravening the law – so watch what you tweet or blog.

That bill was never finalised, and that’s what Minister of Police Nathi Mthethwa on May 30 said would go through “refining” and be aligned with the constitution. He said the team doing this would finish the first part of their work by the end of next month, and the bill would be introduced to Parliament before the end of this financial year.

MPs were due to debate the national key points issue last week, but this has been rescheduled for later this month.

This debate is sorely needed, and should focus on tightening accountability and determining rational and clear criteria for determining whether a facility should be declared a key point.

* Chandré Gould is a senior researcher at the Institute for Security Studies, and Louise Flanagan is a senior reporter at The Star

Why do we need a list of National Key Points?

These are deemed to be so vital to national security that it is justifiable to restrict citizens’ rights to access information about them, and prohibit the right to assemble or protest there.

We need to have a list of national key points, because the Act could apply to just about any building or site, not just sensitive military bases.

Yet because the public doesn’t know conclusively which buildings are national key points, you could be breaking the law without even knowing it, by staging a protest at a national key point or by merely photographing it.

South Africans clearly have a right to know – and it would not undermine national security if we did.

How can I identify a National Key Point?

Many national key points are easily identified. For example, certain SABC stations have a sign at the entrance announcing that the site is a national key point. Other institutions list their national key point status in annual reports or on their website. Other buildings only come to be known when authorities refuse to allow a protest there.

According to the letter in which the Ministry of Police earlier refused to release a list of national key points, places or areas which are national key points may include banks, munitions industries, petrochemical industries, water supply, electricity, communications, air transport, government institutions, data processing, research or technology information systems. – Right to Know

The Star