February 17, 2019

National Key Points Act cannot be replaced

Public hearings held at Parliament last week on legislation to replace the apartheid-era National Key Points Act of 1980 described the new proposed Bill as draconian, vague, far too broad and possibly unconstitutional.

Inputs from civil society and Committee members warned that the Bill in its present form faced being rejected for being in breach of the Constitution.

A total of 15 civil society organisations made inputs about the proposed new Bill at hearings organised by the Police Committee, which are expected to continue this week.

Public submissions warned that the proposal to replace the National Key Points Act with the proposed Critical Infrastructure Protection Bill would amount to “security creep” as any number of institutions, including banks or even the Gautrain, could be identified as critical infrastructure.

The proposed new legislation retained the enforced secrecy and exclusion of the National Key Points Act, but introduced severe maximum penalties for defaulters.

Committee worried about 'securocratic creep'.

According to the Right2Know Campaign the number of national key points and strategic installations had increased by 66% between 2007 and 2017, and the organisation said there were an additional 248 secret sites which may be declared strategic installations. Murray Hunter of Right2Know said this amounted to securocratic government.

Right2Know said in a statement that “the apartheid-era Act must be scrapped in its entirety, not tinkered with, and any new law must be rooted in openness and transparency, as narrowly defined as possible, with strong, independent oversight”.

Right2Know has consistently called for the scrapping of the National Key Points Act, and others have asked why the Act had never been scrapped under democracy, even though it has come under scrutiny several times.

“This could make it a crime to take a selfie at Parliament, OR Tambo International Airport or the SABC,” Right2Know said in a statement.

Greenpeace, which appeared before the Police Committee, raised concerns about what it described as a shift away from the core principles on which the South African Constitution is based towards the restriction and repression of dissent, ostensibly in the interest of national security.

Happy Khambule, Climate and Energy Political Advisor: Greenpeace Africa, said that its environmental work reflected the core values of Greenpeace organisations throughout the world, which included “bearing witness” to environmental destruction in a peaceful way, and using non-violent confrontation to raise the level and quality of public debate.

The Critical Infrastructure Protection Bill in its present form would criminalise many of the activities which Greenpeace undertook to promote public debate and could expose its activists to the risk of imprisonment for up to 30 years. The organisation believed that the Bill was unconstitutional because it limited fundamental rights in the Bill of Rights in ways that were unnecessarily restrictive and disproportionate.

Khambule said that the impact of this Bill would discourage legitimate expressions of rights by imposing blanket restrictions on the Constitutional rights of freedom to receive or impart information. The Bill imposed draconian penalties for very broadly defined crimes, including many that did not pose a threat to the critical infrastructure.

The Committee also heard submissions from the Social Justice Coalition (SJC), the Catholic Parliamentary Liaison Office, the African Policing and Community Oversight Forum (APCOF), and the Congress of South African Trade Unions (Cosatu).

They almost all echoed the concern that the Bill would criminalise legitimate protest and freedom of expression, and undermine hard-won constitutional rights.

The Social Justice Coalition described the Bill as a risk because it was far too broad in what it declared was critical infrastructure. It also expressed concern that the Minister had too much power in deciding what was critical infrastructure.

The Southern African Catholic Bishops Conference wanted the Bill brought into line with a free and open society, where civil and political rights enjoyed priority.

The African Policing and Civilian Oversight Forum (APCOF) said its primary concern was that the proposed definition of critical infrastructure might be inconsistent with the Constitution and broader legislation. Its second concern was about access to information and lack of transparency and accountability in determining what was a key point.

Cosatu, on the other hand, welcomed the removal from the statute books of the sinister National Key Points Act, which continued to be used to undermine worker’s rights. It said the new Bill would not interfere with the rights protected by the Constitution, the Labour Relations Act, the Regulation of Gatherings Act, the Protected Disclosures Act, the Promotion of Access to Information Act and the Promotion of Administrative Justice Act.

Members of the Committee challenged Cosatu, and asked the trade union body for its view on the constitutionality of the Bill and the maximum penalties that it introduced.

Ms Shenaaz Meer, Assistant General Counsel of the South African Reserve Bank (SARB) said that the SARB had the primary responsibility for promoting financial stability through the Financial Stability Oversight Committee (FSOC). It was therefore essential; she said, that the SARB was consulted on matters affecting financial stability and that the Bill made provision for the National Police Commissioner to consult with the SARB.

The Banking Association of South Africa (BASA) said BASA supported the idea of supporting South Africa’s critical infrastructure in the interests of the state and all citizens, and it gave the Bill the thumbs up in general. But it added that if the Minister considered banks, ATMs and data centres as critical infrastructure this would need to be done in consultation with the Financial Stability Oversight Committee and “cyber response committee” established in section 53 of the Cybercrimes and Cybersecurity Bill, which includes representatives from the South African Reserve Bank, National Treasury and the Financial Intelligence Centre.

Ms Kohler Barnard suggested that there was a need to look very closely at the proposed members of the Council, especially since there was no consideration of members in the financial and trading entities, who would understand the operation of finance and banks.

The SARB may be considered a national key point, but when it came to banks and ATMs she said she wouldn’t like to see people going to jail for taking a photo of an ATM.

Members said visitors to Parliament enjoyed taking photos of Mandela’s statue in front of the National Assembly, which was a National Key Point. Was this actually not permissible? They expressed concern that the Bill would allow thousands of buildings to be declared national key points or critical infrastructure zones, possibly including clinics or schools, which could restrict access to health care or education.

Who decides what would constitute critical infrastructure was a question raised. Another concern was that the penalties were steep and more punitive than corrective in nature. Members asked if the Bill was really necessary because other legislation covered terrorism, trespassing and cybercrime.

They said the issue of ‘authoritarian creep’ was worrying. The Bill was open to interpretation, and it was very important to clarify that only measures that were taken in the public interest should be permitted. The Committee was concerned to narrow the understanding of what constituted critical infrastructure to security measures only.

The Critical Infrastructure Protection Bill was tabled in Parliament on 15 September 2017 to replace the National Key Points Act. Like its legal predecessor, it would be responsible for identifying and declaring what would now be called critical infrastructure areas. The Bill provides for the establishment of a National Critical Infrastructure Council and describes the designation and functions of inspectors, the Council itself and the National Commissioner of Police.

Moira Levy

Information sourced from Information sourced from the Parliamentary Monitoring Group at http://bit.ly/2sbIIaD and https://pmg.org.za/committee-meeting/25738/

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  • Author: Moira Levy
Last modified on Tuesday, 06 February 2018 11:32

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