On Monday 24 November 2014, the South Gauteng High Court will hear why the public should have access to a list of National Key Points. The Right2Know Campaign and the South African History Archive (SAHA) will ask the court to set aside the refusal by the South African Police Service (SAPS) to release a list of National Key Points in terms of the Promotion of Access to Information Act (PAIA). We believe this basic transparency is an important step in countering the uncontrolled secrecy and potential abuse of South Africa's 'national security' policies.
In October 2012 SAHA, at the request of the Right2Know Campaign, made a PAIA request to SAPS for a list of sites protected by the apartheid-era National Key Points Act (the Act). SAPS refused to release the information, citing national security concerns. An internal appeal to the Minister of Police upheld that refusal; in addition to broad security concerns, the Minister cited the need to consider the privacy of private companies who are protected by the Act. We will ask the court to set aside this refusal and order a release of the information.
Our call for a public list of National Key Points came after years of complaints from civic organisations that this security law has been used to undermine both the right to protest in public spaces, and the public's right to know. The Act has been infamously invoked to justify the controversial R230-million upgrades to President Jacob Zuma's personal home in Nkandla, and to hamper efforts to bring the scandal to light. Less widely reported has been the extent to which the Act has recently been invoked to shield certain institutions from protest and criticism, often far beyond the actual powers of the law (see timeline below).
We maintain that the blanket secrecy over which sites have been declared National Key Points has helped officials and politicians to use and abuse the Act to undermine our constitutional rights. The secret implementation of the Act, in which decisions are taken behind closed doors in terms of vague and open-ended regulations, has contributed to a worrying resurgence of secrecy. Though the list of National Key Points remains a secret, the number of sites appears to have increased by nearly 70% in the past seven years (see R2K Secret State of the Nation Report 2014)
We further maintain that it is possible to disclose the list of National Key Points without harming national security. In fact, PAIA compels public bodies to consider whether, in trying to strike the balance between openness and the need to protect legitimate national security concerns, records can be partially severed. PAIA also contains an all-important public interest override that requires public bodies to disclose records, even if there may be legitimate reasons to refuse access, if the records contain information that the South African public clearly has the right to know. It is the failure by SAPS to consider either of these key transparency checks contained within PAIA that is at the centre of this court challenge, as greater openness about the implementation of security laws is the only way to guard against their abuse and irrational application.
In May 2013 the Ministry of Police announced a 'review' of the National Key Points Act but so far no amendment Bill has been introduced to Parliament. Importantly, SAPS has made it clear that they do not intend to table a public list of National Key Points and Strategic Installations as part of a Parliamentary amendment Bill, meaning Parliament should produce a law with no public list of the institutions and places which would be affected by the law (see SAPS statement, 8 November 2013.)
We believe that a public list of National Key Points is a small but vital step in challenging the creep of unjustified 'national-security' secrecy in our politics and public life.
Cliffe Dekker Hofmeyr attorneys are acting for SAHA and the Right2Know Campaign, through their Pro Bono and Human Rights Department.
For comment, please contact:
Catherine Kennedy, Director, SAHA: 011-718-2560
Murray Hunter, spokesperson, R2K: 072-672-5468
Download our court papers here
Recent examples of abuse of the National Key Points Act:
- In November 2012, police reportedly arrest 23 Xstrata mineworkers for demonstrating outside the Rustenburg Magistrate's Court, stating that law does not allow protests to be conducted close to national key points. This is untrue. It is also unclear if the Court actually is a National Key Point.
- In 2013, Cabinet cites NKPA to justify secrecy around R215-m upgrades to President's home in Nkandla.
- In 2013, Numsa is told by municipal officials that it cannot protest against electricity tariffs at offices of Nersa (electricity regulator) which is a NKP
- In 2014, SABC chairperson warned SABC staff that as employees at a NKP they should not leak information about internal strife and could be subject to surveillance.
- SASOL and NATREF (Petroleum Refineries) refused to give environmental information to the Centre for Environmental Rights in 2014, citing the NKPA.
- In June 2014, Tshwane metro police cite the NKPA to stop R2K organisers from picketing the Seriti Commission on the Arms Deal.
- In October 2014, Engen management sends a legal threat to environmental activists in South Durban, warning against protesting against the refinery as the site is a NKP.
- In November 2014, Eskom managers detains a journalist for photographing Majuba power station (the source of loadshedding) saying that it is illegal to take photos of NKPs.
- October 2012: At R2K's request, SAHA submits a PAIA request to SAPS for a list of all National Key Points.
- November 2012: SAPS refuses the request, citing security concerns.
- December 2012: SAHA lodges an internal appeal, which requires the Minister of Police to re-consider the request within 30 days.
- March 2013: After several delays, the Minister of Police upholds the decision not to release the information, citing security concerns and the privacy of "third parties" protected by the National Key Points Act.
- April 2013: After an R2K report determines that there has been a dramatic increase in National Key Points in the past six years (rising by over 54% since 2007), R2K begins crowd-sourcing information on the location of national key points - building a database of more than 100 confirmed and likely sites.
- May 2013: The then Minister of Police Nathi Mthethwa announces that the National Key Points Act will be 'reviewed', with the aim of introducing an amendment Bill to Parliament. A police advisory committee begins 'evaluating' all existing National Key Points.
- September 2013: R2K and SAHA file court papers to compel SAPS to release the information requested.
- November 2013: The Ministry of Police announces that evaluation of existing National Key Points is complete. The minister's advisors recommend that the list of National Key Points remains secret, even while Parliament drafts a new law.
- November 2014: The matter reaches the South Gauteng High Court. R2K and SAHA argue that the public has a right to know which sites are protected by the National Key Points Act - there must be a minimum level of transparency and secrecy can only be justified where it is vital to national security.